High Court · 2012

Judgment

1. Abnormal shortages of MS, HSD and SKO as detailed below were detected at Dharmanagar depot during a joint physical stock check that was carried out on 2 1.05.05 morning by you and Shri S. Ray, incumbent DM (Ops), Dharmanagar in prese nce of Shri A. Adut, SM (Ops), Guwahati as a part of charge handing over / takin g over of Dharmanagar depot consequent to your transfer to Guwahati vide office order no. PERS; 1/5-872 dated 08.04.05 and posting of Shri S. Ray at Dharmanagar vide office order no. PERS: 1/5-073 dated 08.04.05. Product Book Stock as on 21.05.05 (Opening) in KL 05.05 (Opening) in KL MS SKO HSD

358.778 311.138 (-) 47.640 1373.106 1928.643 Discrepancy in KL

1333.010 1825.525 (-) 40.096 (-) 103.118 Physical Stock as on 21. Such high stock losses cannot result in the course of normal depot operations no r happen over a short time period, but can be attributed to deliberate and syste matic product diversion and disposal by you over a period time through fraudulen t ways and means. After receipt of your transfer order towards end April’05, you deliberately resorted to book stock manipulation prior to handing over charge o f Dharmanagar Depot with the malafide intention to cover-up the high stock losse s which resulted from your fraudulent acts of product diversion. Amongst others, the following irregularities committed by you between 30th April’05 to 22nd May ’05 have come to light.

1.1 Prior to the joint stock inspection on 21.05.05 which commenced at aroun d 0800 hrs, you made an abortive attempt in the early morning on 21.05.05 to unl oad HSD tank wagon from the railway to the depot tank with the intention to part ially make up HSD stock shortage of 103 KL (of which you were fully aware of) an d show the tank wagon as short received.

1.2 On 30.04.05 you prepared two challns - nos. 000558 dated 30.04.2005 for TT No. TRL 4098 in the name of Chandan Majumdar, Kalyanpur and the other no. 000 559 dated 30.04.05 for TT no. AS-01V-0375 in the name of South Petroleum Agency, Sabroom, each for 12 KL of SKO along with receipt of DD for full product value. But actual product dispatch

The above acts of book stock manipulation were deliberately resorted to by you t o partially cover-up high stock losses of SKO resulting from product diverted an d disposed off by you earlier through fraudulent means. On 17.05.05 you prepared three DDs for Rs. 1,12,509/- (No. 720649 dated 1.3 17.05.05 for Rs. 16,509, no. 720654 dtd. 17.05.05 for Rs. 48,000/- and no. 72065 5 dated 17.05.05 for Rs. 48,000/-) which were credited in SAP in the name of Shr i KCB Poddar, Mannubazar without the knowledge of the party. This was done by yo u deliberately with the malafide intention to further manipulate book stock reco rds by falsifying product dispatch so that high stock losses can be partially co vered up prior to handing over charge on 21.05.05. Between 1st May to 20th May you had diverted 41 KL SKO to MS tanks nos. 1.4 9, 10, 11 and 12 with the malafide intention to make up high MS stock losses whi ch resulted from product diverted and disposed off by you earlier through fraudu lent means. This not only led to stock discrepancy of SKO but also adulteration of MS which has been viewed very seriously for violating the laid down marketing policy of maintaining and supplying product of specified quality.

1.5 After the joint stock check on 21.05.05 which was followed by your handi ng over charge of Dharmanagar Depot on the same day, on 22.05.05 (Sunday) you en tered the depot premises at around 1300 hrs without intimation or permission, br oke a glass pane of the back door of the staff office-cum-record room and took a way some official documents, purportedly to prevent the irregularities committed by you from coming to light.

2. Over and above what have been stated above, the following fraudulent act s of irregularities were reportedly carried out by you during your tenure at Dha rmanagar depot to divert and dispose off products unauthorisedly :-

2.1 One of the two dip rods used for taking dip measurement of MS tanks was deliberately shortened / cut by you by about 7.5 cm on 30.01.05 with the malafid e intension to mislead DGM(MO) who was to carry out a surprise stock check at Dh armanagar depot on 1st Feb’05 by showing more than actual quantity of MS in tank s.

2.2 The dip book record of MS tank no. 10 which showed closing dip of 289.5 cm (equivalent to about 108 KL of MS) on 16.02.05 showed opening dip of 276.8 cm on 17.02.05 (equivalent of about 95.5 KL of MS). As this dip difference of 12.7 cm showed a product shortfall of approx 12 KL, the matter was brought to your n otice at around 0900 hrs on 17.02.05 by Shri KA Laskar, Depot Supervisor and oth er concerned staff. However, you did not investigate the matter nor reported the same to higher authority, knowing full well that such high stock variation cann ot happen over night. Your inaction can be attributed to the malafide intention to suppress informatio n on high stock losses resulting from irregularities committee by you earlier.

2.3 12 KL of HSD carried by TT no. AS-25B-4651 on 11.05.05 ex-TOP for Dharma nagar Depot was shown as received by you on challan no. 90646198 dated 07.05.05 but was not actually unloaded at Dharmanagar Depot. Likewise 12 KL of HSD carrie d by TT no. AS-01R-9565 ex-TOP for Dharmanagar on 14.05.05 was also shown as rec eived by you on challan no. 90654792 dated 13.05.05 but was not actually unloade d at the Depot. On both the occasions you diverted HSD with malafide intention o f disposing off the same in the market. The above instances of irregularities committed by you led us to believe that yo u, being a responsible officer of the Corporation, have failed to maintain absol ute integrity and devotion to duty as expected. You have also committed theft, f raud and dishonesty in connection with business and property of the Corporation and acted in a manner prejudicial to the interests of the Corporation. You have also been found to be negligent in the performance of duty. The above charges, when proved, will constitute contravention of general conduct within the meaning of the Rules 6(1)(i) & (ii) of the Corporation’s Conduct, Di scipline & Appeal (CDA) Rules, 1980 and also constitute misconducts within the m eaning of Rule 7(1), 7(5) & 7(9) of the CDA Rules, as applicable to you. You are hereby directed to show cause as to why appropriate disciplinary action should not be initiated against you as per the provisions of the CDA Rules, 1980 . Your explanation in writing showing cause should be submitted to the undersign ed within 7(seven) days of receipt of this chargesheet. Yours faithfully, Indian Oil Corporation Ltd. (Assam Oil Division ) Sd/- ( B.K. Sarma ) Executive Director & Disciplinary Authority (cid:29)

2. The details of the charges were divided into two parts with statement of facts. Only the relevant portion of the said statement, held to have been estab lished in the enquiry are reproduced below :- (cid:28)1. & &.. Prior to the joint stock inspection on 21.05.05 which commenced at aroun 1.1 d 0800 hrs, you made an abortive attempt in the early morning on 21.05.05 to unl oad HSD tank wagon from the railway to the depot tank with the intention to part ially make up HSD stock shortage of 103 KL (of which you were fully aware of) an d show the tank wagon as short received. 1.2 1.3 1.4 1.5 & &. & &. & &. & &.

2. Over and above what have been stated above, the following fraudulent act s of irregularities were reportedly carried out by you during your tenure at Dha rmanagar depot to divert and dispose off products unauthorisedly.

2.1 The dip book record of MS tank no. 10 which showed closing dip of 289.5 2.2 cm (equivalent to about 108 KL of MS) on 16.02.05 showed opening dip of 276.8 cm on 17.02.05 (equivalent of about 95.5 KL of MS). As this dip difference of 12.7 & & &. cm showed a product shortfall of approx 12 KL, the matter was brought to your n otice at around 0900 hrs on 17.02.05 by Shri KA Laskar, Depot Supervisor and oth er concerned staff. However, you did not investigate the matter nor reported the same to higher authority, knowing full well that such high stock variation cann ot happen over night. 2.3 & & &. (cid:29)

3. It was stated in the charge sheet that the charges levelled against the petitioner, if proved, would constitute contravention of general conduct within the meaning of Rule 6(1)(i) & (ii) of the Corporation’s Conduct discipline & App eal (CDA) Rules, 1980 and also constitute misconduct within the meaning of Rule 7(1), 7(5) and 7(9) of the CDA Rules.

4. In response to the charge sheet, the petitioner submitted his reply date d 14.7.2005 in which it was contended that allegations had been levelled against the petitioner without furnishing any material particulars. While contending th at there was no negligence on the part of the petitioner, the petitioner also st ated as follows :- (cid:28)I beg to state herein that till date I have not been furnished with the copies of documents to be used against me to prove the concocted allegations levelled a gainst me. I have not even been provided with due opportunity to inspect any suc h documents, copies of these documents or their inspection, in the alternative, were highly essential for preparing the show cause and also to prepare my defenc e. I have been highly prejudiced by non-supply of the documents. The principle o f Natural justice has thus been violated. That Sir, it is a matter of deep regret tot state here that I have not been give n due opportunity to prepare my defence in proper manner. Vide my letter dated 2 7.06.05, addressed to the Executive Director, I requested to allow me to go to Dharmanagar Depot of collection of data from the relevant files and documents bu t till date I have not been intimated anything regarding my desired visit to the said Depot. Thus I have been compelled to submit this show-cause without collec ting any data. Under the circumstances, I would once again appeal before you for getting the necessary data enabling me to respond show-cause cum charge sheet a ppropriately and in complete manner. I further state that I was made to make a statement of facts on 28.05.05 under duress by A. Adut, SM(Ops) and Sri L.N.Phukan, CM (M&I) Ghy. As I refused to mak e any statement, I was threatened with dire consequences and a statement, purpor ted to be made by me, was dictated by Sri L.N. Phukan, CM (M&I) Ghy. The said st atement has now been projected as one made by me. The said statement, dictated o n 28.05.05, is not a voluntary statement made by me. I was forced to put my sign ature in the statement by threat of instant arrest and torture to be made after arrest. (cid:29)

5. When the matter rested thus, the petitioner was served with Annexure-5 l etter levelling further allegations of commission of irregularities mentioned in the letter. Relevant portion of the same is quoted below :- (cid:28)The monthly salary of Corporation’s employee posted at Dharmanagar Depot was no t disbursed regularly to them during your tenure - the same was received by the staff usually one and half to two months late. But the imprest fund meant for sa lary disbursement was withdrawn regularly from the bank by you. Moreover, inspite of adequate imprest fund regularly provided by Digboi Finance, contractors’ bills, telephones and electricity bills were not paid on time and were kept pending at the Depot. The above instances shows that the Corporation’s fund was being misused by you f or irregular means. Moreover you violated laid down rules for timely payment of salary and also worked against interest of the Corporation by not cleaning dues on time. (cid:29)

6. In response to the aforesaid additional charge, the petitioner by his An nexure-7 letter dated 2.8.2005 made a request to the ED, IOCL (AOD) to provide h im inspection of documents relating to the charges. The same was followed by his reply dated 3.9.2005 (Annexure-8). In both the replies, the petitioner had subm itted in response to the charges levelled against him, he denied the same.

7. By Annexure-9 order dated 13.9.2005, the disciplinary authority conveyed the decision to conduct an enquiry into the charges levelled against the petiti oner, being not satisfied with the explanation furnished by the petitioner. By t he said letter, the Presenting Officer (PO) was also appointed. By Annexure-10 l etter dated 27.10.2005, the petitioner made a request to the Enquiry Officer to provide him with the documents mentioned in the said letter, which was followed by the Annexure-11 letter dated 30.12.2005, in which inter alia it was contende d as follows :- (cid:28)That apart, in a departmental proceeding, the principles of natural justice has to be strictly adhered to by affording every opportunity to the delinquent offi cer to defend himself. In my case, the management did not provide me with the re quired opportunity to defend myself. In my reply to the Show-Cause notice dated 14.07.2005, I agitated that I was not furnished with the copies of documents to enable me to prepare proper reply to the show-cause notice. Even during cross ex amination of witnesses agitated non-supply of the copies of documents which the management wanted to use against me in evidence. Documents were, however, exhibi ted despite my objection. Though the P.O assured me that copies would be supplie d, such assurance was not complied with. Moreover, it is a settled principle of natural justice that a delinquent officer has to be informed about the witnesses to be examined during enquiry by praying a list of witnesses along with the charge sheet. The management has not provide d any list of witnesses and I was kept in the dark regarding names of witnesses in gross violation of Natural justice. (cid:28)

8. In due course, an enquiry was conducted by the appointed Enquiry Officer (EO) and he submitted his report which was forwarded to the petitioner by Annex ure-12 letter dated 18.2.2006 enclosing therewith the order dated 17.2.2006 pass ed by the Disciplinary Authority, by which the petitioner was provided with an o pportunity to make representation against the enquiry report. The EO in his repo rt upon assessment of the evidence, recorded the following findings (Relevant po rtion only ): (cid:28)11.2.4 : CSO did not led any evidence that there was demurrage on account of no t unloading tank wagon in the early morning of 21.05.05. He is also a signature to the charge hand over note dated 21.05.05 (M-30). Therefore, it may be safely inferred that the plea of avoiding demurrage charges is an afterthought. As such , it is proved that CSO acted with malafide intention to partially make up HSD s tock shortages.

11.8.1 : As regards the charge of (Para 4.8 above) sudden stock loss of 12 KL MS between the closing stock of 16.02.05 and opening stock of 17.02.05 in MS tank no. 10, MW-2 produced one photocopy of two pages of tank gauge book (M-5). Both CSO & CoE made an observation that the same were not attested and from the appea rance it could not be recognized that the same were Corporation’s Stationery. Ho wever, the exhibit is relied upon, signature of MW-2 in it is identifiable and a cross-examination by CSO. During s its contents were not challenged during cross examination, MW-2 conceded that there were gains of 4.9 cm in tank no.11 and 0.8 cm in tank no.12 between the closing dip of 16.02.05 and opening dip of

17.02.05 while tank no. 11 was not operated on 16.02.05. As such, loss or gain b etween the closing and opening stock is not unnatural phenomenon in petroleum sh ortage tanks.

11.8.2 : However, the fact remains that CSO neither investigated nor inform to higher authority about the sudden loss of 12 KL MS overnight. As such, it is evi dent that CSO committed the acts of suppressing information on high stock loss w ith malafide intention.

11.9.1 : As regards the charge of (Para 4.9) above) diversion of 24 KL HSD in t he market, MW-2 produced two documents (Exhibit M-12 and M-13) showing that CSO signed the documents as a token of receipt of the product at the Depot. MW-2 sta ted that the product did not enter the Depot and the product was ’sold out’ in t he market. However, no material evidence was produced to substantiate that the p roduct was ’sold out’ in the market. Mere verbal evidence given by MW-2 cannot b e relied upon without supportive evidence as it was found that he gave inconsist ent statement during the inquiry.

11.20.4 : Contention of CSO that adequate impress fund was not made availa ble from Digboi Finance is not plausible in this case. He forwarded other two el ectricity bills to Guwahati Office for payment as mentioned above. However, the remaining bills were not forwarded to Guwahati office for payment in time. There fore, CSO is found to be negligent in performance of his duty in this regard.

11.20.5 : No evidence in regard to non-payment of contractor’s bills was led in the inquiry on behalf of the Management. (cid:29)

9. fficer held thus (relevant portion only) :- Regarding the over all findings in respect of the charges, the Enquiry O (cid:28)12.1.1 : As regards whether CSO during his tenure diverted and disposed of pro ducts deliberately through fraudulent ways and means and incurred abnormal stock loss of MS, HSD and SKO at Dharmanagar Depot, Exhibit M-1 established the fact that there was abnormal shortage of physical stocks of MS, HSD and SKO as on 21. 05.05.

12.1.2 : CSO pleaded that he did not take joint physical stocks while taking ch arge from his predecessor Sri N.R. Debnath on 01.08.2000. He tried to explain th at losses were carried over from his predecessor. The exhibit D-1 produced by hi m was found to be unacceptable as explained above. Therefore, this argument does help mitigating the losses.

12.1.3 : Although, CSO brought out the concepts of temperature variation, evapo ration loss, operation loss and tank ’bulging effect’, he did not quantify the s ame. Admittedly, CSO was in charge of the Dharmanagar Depot since 1st August 200 0 to 20th May 2005. Four and half years is a long enough time to be conversant w ith these concepts. In his explanation dated 14.07.05, he also claimed that he w orked as an officer in Marketing Depots at Barapani, Khotkhoti and Numaligarh Un it before transferred to Dharmanagar Depot during his thirteen years of career i n the Corporation. However, he preferred not to address these points during his deposition.

12.1.4 : CSO pleaded during deposition that abnormal shortage mentioned in the chargesheet was the result of unified process of teamwork with the involvement o f number of persons of the Depot and those who were involved had tried to save t heir skin and shift the onus upon CSO. It is logical to infer that such ’unified process of teamwork’ is possible only through deliberate and systematic diversi on and disposal of products through fraudulent ways and means.

12.1.5 : Since CSO was the over all in-charge of the Depot during the period in question, it is natural that he was directly accountable for such abnormal short ages of MS, HSD and SKO mentioned in the charge sheet unless plausible reason is provided. CSO in his defence could not provide any plausible reason that he was not responsible for such abnormal losses.

12.1.6 : Such high stock losses could not have happened in the course of normal operation over a short period without deliberate and systematic product diversio n and disposal through fraudulent ways and means.

12.1.7 : As such, it is proved that CSO during his tenure diverted and disposed of products deliberately through fraudulent ways and means and incurred abnormal stock loss of MS, HSD and SKO at Dharmanagar Depot as alleged.

12.2.1 : As regards whether CSO manipulated book stocks of products to partiall y cover up high stock losses of MS, HSD and SKO, from the evidence of MW2, MW3, MW5 and MW8 it corroborates the fact that CSO made an attempt to unload HSD tank wagon in the early morning of 21.05.05. CSO’s plea that he tried to unload to a void demurrage charge (page 53) is an afterthought as there was no demurrage cla imed by the Railways for the tank wagon. As such, it is logical to make inferenc e that CSO acted with malafide intension to partially cover up high stock losses of HSD and manipulate book stocks as alleged.

12.3.1 : As regards whether CSO suppressed information on high stock losses, MW -2 testified through exhibit M-5 that there was a sudden loss of 12 KL MS betwee n the closing stock of 16.02.05 and opening stock of 17.02.05 in MS tank No.10. As per the noticing in the M-5, CSO did not give any importance to it and he hus hed up the matter. On the other hand, CSO did not lead any evidence that he eith er investigated or reported the matter to higher authority. As such, it is prove d that CSO suppressed information on high stock losses as alleged.

12.7.1 : As regards whether CSO acted against the interest of the Corporation, testimony of MW5 proves that outstanding of electricity bills including penalty charge up to April’05 was Rs. 1,15,000/- and telephone bills was Rs. 42,199/- (E xhibit M-30) during the tenure of CSO. Non-payment of electricity and telephone bills amounts to acting against the interest of the Corporation. As such, the ch arge is proved.

12.7.2 : However, the charge of ’time barred’ Railway claims amounting to Rs. 3 5 lacs was not proved for the reasons stated above.

12.8.1 : As regards whether CSO violated laid down Rules of the Corporation, th e charge is not proved. (cid:29)

10. as follows :- With the aforesaid findings, the Enquiry Office recorded his conclusion (cid:28)13.0 :CONCLUSION : 13.1 : On the basis of the above assessment of evidence and findings, it is est ablished that Sri P.C. Das (CSO) committee the acts of dishonesty in connection with business and property of the Corporation within the mean of CDA Rule 7(1).

13.2 : It is established that Sri P.C. Das (CSO) acted in a manner prejudicial t o the interest of the Corporation within the meaning of CDA Rule 7(5).

13.3 : It is established that Sri P.C. Das (CSO) failed to maintain absolute int egrity and devotion to duty within the meaning of CDA Rule 6(1) (i) & (ii).

13.4 : It is established that Sri P.C. Das (CSO) was found to be negligent in th e performance of duty within the meaning of CA Rule 7(9). (cid:29)

11. In response to the aforesaid enquiry report, the petitioner submitted hi s detailed representation dated 3.3.2006. On receipt of the representation, the disciplinary authority vide its order dated 4.5.2006, opined that the Enquiry Of ficer had taken a too Hyper Technical View of the situation, ordinarily not perm issible in a domestic enquiry. The said observation was made by the Disciplinary Authority in respect of the purported Confessional Statement of the petitioner dated 28.5.2005. Accordingly, by the said order, the enquiry proceeding was remi tted back to the Enquiry Officer to record findings in respect of the purported confessional statement made by the petitioner and thereafter to give findings on the same. The above exercise of the disciplinary authority was followed by furt her proceeding and the report furnished by the Enquiry Officer, not accepting th e purported confessional statement.

12. The disciplinary authority disagreed with the said findings recorded by the Enquiry Officer by its order dated 15.6.2006. By the said order, the petitio ner was given an opportunity to make further representation. For a ready referen ce, the order dated 15.6.2006 is also reproduced below :- (cid:28)Ref. D/O : PCD-872 Dated : 15.06.2006. ORDER Enquiry Officer (EO) has submitted his Supplementary Report dated 30.05.06 on co mpletion of further enquiry proceedings after EO’s report dated 09.02.06 was rem itted to him for further enquiry vide letter no. D/O. PCD-872 dated 04.05.06. A copy of the EO’s report dated 30.05.06 is enclosed for ready reference. On careful consideration of the EO’s Supplementary Report and related records of the enquiry proceedings and documents, I have come to the following conclusions : (i) Enquiry Officer’s conclusion that exhibit M-31 cannot be regarded as a ’ confessional statement’ is not sustainable in law applicable to domestic discipl inary enquiry. Section 164 of the Code of Criminal procedures, 1973, as referred to in EO’s Supplementary Report as well as the enquiry proceedings, is not appl icable to a domestic disciplinary enquiry, as the said section lays down the pro cedure for recording confession and statement of a person by a Magistrate in cou rse of any investigation into a criminal case. The Enquiry officer has not appre ciated the distinction in law between a criminal proceeding and a proceeding rel ating to a domestic disciplinary enquiry. (ii) The facts recorded in the body of Exhibit M-31 which was handwritten by the chargesheeted officer (CSO) prove that it is a confessional statement made b y CSO on 28.05.05. the alleged infirmities pointed out by the CSO as well as Co E (Co-employee) in the ’confessional statement’ during cross-examination of MW-5 lose their meaning on a conjoint and coherent reading of the ’confessional stat ement’ made by Shri PC Das and the evidence adduced by MW-5 in his examination. (iii) Further CSO’s allegation as stated in his defence that the ’confessiona l statement’ was made by him on 28.05.05 under duress appear to be an afterthoug ht, as the matter was not reported by Shri PC Das to his superior authorities af ter his statement was taken on 28.05.05. After more than a month and a half, CSO made the allegation in his explanation dtd. 14.7.05 to the Chargesheet dtd. 03.

06.05. (iv) I am inclined to believe that CSO made the Statement of Facts on 28.05.0 5 (Exhibit M-31) voluntarily during the fact finding departmental investigation into abnormal shortage of POL products detected at Dharmanagar Depot when the in formation and evidence collected by the fact finding departmental investigation team were brought to the notice of CSO. In view of the foregoing, I am inclined to disagree with the conclusions drawn b y the Enquiry Officer with regard to the confessional statement of CSO (Exhibit M-31) in his report dated 30.05.06. However, before arriving at my final conclu sion, said Shri PC Das is hereby given another opportunity to make further repre sentation, if any, in writing within 7 days of receipt of this order, failing wh ich it would be presumed that Shri Das has no explanation to offer and further a ppropriate order as deemed fit shall be passed. Sd/- (B. K. Sarma ) Executive Director & Disciplinary Authority. (cid:29)

13. The petitioner by his additional written brief dated 29.5.2006 raised ob jection in respect of witness No. M-31 one Shri L.N. Phukan, who conducted the p reliminary enquiry, who was appointed as the Presenting Officer. It was contende d that the defence of the petitioner was highly prejudiced as he was deprived of cross examination of the said PO Mr. L.N. Phukan (M-31). The petitioner also su bmitted his Annexure-17 representation dated 21.6.2006 against the aforesaid ord er of disagreement passed by the disciplinary authority. Thereafter, by Annexure -18 order dated 29.6.2006, the petitioner was dismissed from service. He then pr eferred the Annexure-19 appeal dated 4.8.2006 to the Appellate Authority but at the time of filling of the writ petition, the appeal was not disposed of.

14. I have heard Ms. D. Borgohain, learned counsel for the petitioner. I hav e also heard Mr. S.N. Sarma, learned senior counsel assisted by Mr.A. Jahid, lea rned counsel appearing for the respondent Corporation. Ms. Borgohain, learned co unsel for the petitioner in her persuasive pursuits extensively argued in refere nce to the evidence on record and the findings arrived at by the Enquiry Officer . She also questioned the action on the part of the disciplinary authority to re mand the matter back to the Enquiry Officer for conducting the enquiry afresh in respect of the purported confessional statement of the petitioner. She submitte d that the disciplinary authority having not exhibited the said confessional sta tement, it was not open for it to get the same exhibited through a further proce eding. According to her, the confessional statement is not attributable to the p etitioner as the same is not in accordance with law. Referring to the purported contradictions in the evidence led by the dis 15. ciplinary authority and the findings recorded by the Enquiry Officer, she submit ted that the findings arrived at by the Enquiry Officer being based on no eviden ce at all, same are to be regarded as perverse with the consequence of interfere nce with the order of dismissal passed against the petitioner. In support of her arguments, she placed reliance on the following decisions :- (i) (2009) 2 SCC 570 (Roop Singh Negi vs. Punjab National Bank and others) (ii) (2010) 11 SCC 233 (General Manaer (P), Punjab & Sind Bank & Ors Vs. Daya Si ngh) (iii) (2011) 6 SCC 376 (Commissioner of Police, Delhi & Ors. Vs. Jai Bhagwan) (iv) (2012) 3 SCC 178 (Krushnakant B. Parmar Vs. Union of India & another)

16. As against the aforesaid arguments advanced by the learned counsel for t he petitioner, Mr. S.N. Sarma, learned senior counsel appearing for the responde nt Corporation submitted that the petitioner is precluded from raising any issue beyond the pleadings pertaining to the plea of the findings of the Enquiry Offi cer being perverse. As regards the plea of the petitioner that he alone was not responsible for maintenance of the depot and that a large depot is required to b e maintained by various Officers with collective responsibility and thus the pet itioner could not have been picked up in isolation, Mr. Sarma, learned counsel r epresenting the Corporation submitted that it was the petitioner who was solely responsible for the loss caused to the Corporation and thus the Enquiry Officer rightly held him guilty of the charges. He submitted that in the enquiry due opp ortunity was given to the petitioner and thus, no prejudice was caused to him.

17. I have very carefully considered the submissions advanced by the learned counsel for the parties and have also considered the entire materials on record . The charges against the petitioner have been noted above. In the first c 18. harge sheet dated 3.6.2005, the allegation is of abnormal shortage of MS, HSD an d SKO as detailed in the charge sheet. It was alleged that the high stock losses could not be resulted due to normal depot operations nor could that happen over a short period of time. With such allegation, the inference was attributed to d eliberate and systematic product diversion and disposal by the petitioner over a period of time through fraudulent ways and means. It was also alleged that the petitioner took recourse to stock manipulation prior to handing over charge of t he Dharmanagar Depot.

19. The question that arises for consideration is as to whether along with t he allegation of shortage of stocks, the loss attributed to the petitioner about his deliberate and systematic product diversion and disposal over a period of t ime through fraudulent ways and means and the alleged recourse to book stock man ipulation prior to handing over charge of Dharmanagar Depot, has been establishe d in the enquiry or not. It will have to be borne in mind that shortage of stock in the depot is one thing but the attribution of deliberate and systematic prod uct diversion and disposal by fraudulent means and book stock manipulation by th e petitioner to cover up the same is another thing.

20. On perusal of the enquiry report, it is seen that most of the allegation s attributed to the petitioner, have been held to be not proved by the Enquiry O fficer. While discussing the evidence on record, the Enquiry Officer opined that since the purported confessional statement dated 28.5.2005, although referred t o by the Presenting Officer in his written brief but the same having not been pr oduced during the course of enquiry, cannot be taken into consideration as the s ame would be violative of the principles of natural justice. Discussing the evid ence under the head (cid:28)Assessment of Evidence (cid:29), the Enquiry Officer referred to th e statement of MW-1, which reads as follows :- (cid:28)11.1.3 : However, MW-1 clarified during cross-examination that there may be var iation in volume at receiving end due to change in temperature. MW-1 further cla rified that there is no provision of accounting such stock variation due to chan ge in temperature while maintaining stock book / daily loss gain report either i n SAP or in stock book (Page 7).

11.1.4 : Similarly, MW-1 clarified during cross-examination that evaporation lo ss which may take place at different rates for different petroleum products were also not taken into account while accounting in the stock book / daily loss gai n report as per the Corporation’s standard practice (page 8).

11.1.5 : Further, MW-1 clarified that ceiling of operation loss of these three products were not taken into account while reflecting net loss in the joint stoc k check report dated 21.05.05 (Page 8). (cid:28)

21. If we go by the aforesaid statement of MW-1, it is the own version of th e management witness that there may be variation in volume at receiving end due to change of temperature. The said witness also stated in his cross examination that evaporation loss might take place at different rates for different petroleu m products and such loss was not taken into account while accounting in the Stoc k Book/ Daily Loss report. The said witness also stated that sealing of operatio n loss of the 3 (three) products in question was not taken into account while re flecting the net loss in the Joint Stock Report dated 21.5.2005.

22. From the aforesaid statement of MW-1, when the possibility of evaporatio n and operation loss was not ruled out, it was not open for the Enquiry officer to comment that the petitioner did not quantify the stock variation due to tempe rature change, evaporation loss, operation loss and loss due to tank bulging eff ect, as commented upon upon in paragraph 11.1.6 of the enquiry report.

23. The charge was levelled by the disciplinary authority and it was for it to establish the same. When the MW-1 was examined by the disciplinary authority, himself stated that there could be stock variation due to various reasons, it w as not open for the Enquiry Officer to shift the burden to the petitioner to qua ntify such variation due to the reasons stated by the MW-1. As regards the charg e of manipulation of Book Stock, the Enquiry officer in reference to the stateme nt made by MW-2 and MW-3, has only stated in the enquiry report about the placem ent of the railway tank wagons at Dharmanagar siding. MW-8 in his deposition sta ted that unloading was attempted in order to avoid demurrage charges. On this is sue also, the Enquiry Officer in his report shifted the burden to the petitioner as recorded in paragraph 11.2.4 of the enquiry report with the statement that t he petitioner did not lead any evidence that there was demurrage on account of n ot unloading of tank wagons. Only with that observation, the Enquiry Officer rec orded in his findings that an inference could be drawn that the plea of the peti tioner that the tank wagon was sought to be unloaded to avoid demurrage charge, is not believable. It is only with that inference, the Enquiry Officer has held that the petitioner acted with malafide intention to partially make up the HSD s tock shortages.

24. From the above discussion of evidence, two things have emerged - (i) sho rtage of stock and (ii) the purported attempt of manipulation made by the petiti oner. On both counts, the Enquiry Officer shifted the burden to the petitioner t o prove otherwise and for that matter to prove the negative of the charges made against him. As discussed above, the charge against the petitioner was on two co unts and both were attributed to him. The said two elements are shortage of stoc k and manipulation of stock book to make good the loss. None of the said element s could be proved in the enquiry by the Management Witnesses. However, the Enqui ry officer shifted the burden to the petitioner to prove the negative of the cha rges. Such a procedure adopted by the Enquiry officer, is not acceptable, inasmu ch as, it was for the disciplinary authority to establish the charge against the petitioner.

25. In paragraph 11.3.6 of the enquiry report, the Enquiry Officer has absol ved the petitioner of the charge of preparation of challans etc. Similarly, in r eference to the statement made by MW-2, the Enquiry Officer has held that the pa rticular allegation was vague as from the charge sheet, one cannot make out the name of the product for which high stock loss was referred to in the charge shee t. Likewise, the charge of diversion of stock was also not held to be establishe d. Significantly, in paragraph 11.8.1 of the enquiry report, the Enquiry Officer has held that the loss or gain between closing and opening stock was not an unn atural phenomenon in petroleum storage tank. While making the said statement, th e statement of MW-2 was taken into consideration. In his cross examination, the said MW-2 conceded that there was gain by 4.9 cm in the tank No. 11 and 0.8 cm i n tank No.2 between closing dip on 16.2.2005 and opening dip of 17.2.2005, while the tank No.11 was not operated on 16.2.2005.

26. Inspite of the above findings recorded in paragraph 11.8.1, the Enquiry Officer observed in paragraph 11.8.2 that the petitioner never investigated nor informed the higher authority about the sudden loss of stock. With that observat ion only, the Enquiry Officer held the petitioner guilty of suppressing informat ion on high stock loss with malafide intention. Learned counsel for the petition er rightly argued that suppression of information being not a charge, the Enquir y officer could not have held the petitioner guilty of the said charge without f raming definite article of charge on that count and giving opportunity to the pe titioner to defend the charge.

27. In paragraph 11.9.1 dealing with the charge of diversion of HSD by the p etitioner and the documents produced by MW-2, the Enquiry Officer held that mere verbal evidence given by MW-2 was not reliable without the supporting evidence. It was observed that the said MW-2 was inconsistent in his statement during the enquiry. However, the same very witness was relied upon by the Enquiry Officer to hold the petitioner guilty of the charges.

28. In paragraph 11.9.2 of the enquiry report, the Enquiry Officer held the petitioner not guilty of the charge of diversion of 24 KL HSD as the same was no t substantiated in the enquiry. In paragraph 11.10.1, the Enquiry Officer observ ed that the MW-2 was inconsistent in his statement. Dealing with the question of shortage of HSD in two chambers, the Enquiry Officer significantly while holdin g the charge as not substantiated, observed that it is MW-2 who was guilty of un loading. Likewise, the other elements of the charges were held to be not establi shed by the Enquiry Officer as would be evident from paragraphs 11.11.2, 11.12. 1., 11.112.2, 11.13.1, 11.14.1, 11.15.1, 11.16.1, 11.17.4 and 11.18.1., etc.

29. In paragraph 11.19.1, the Enquiry Officer dealing with the charge of mis using corporation’s funds, held the same not substantiated. As regards delay in payment of staff salary, also the charge was found to be not substantiated. Simi larly, in paragraph 11.20.1 dealing with the statement of MW-5, the Enquiry offi cer has held that there was no delay in payment of electricity bills. However, i t was observed that 20 electricity bills (duplicate bills) pertaining to the per iod from February, 2003 to September, 2004 were forwarded by the petitioner vide his letter dated 24.2.2004 (to be checked) and the payment was released on 30.1 2.2004 and thus the rebate of Rs. 9282/- could not be availed of by the Corporat ion. It was the plea of the petitioner that since the bills were misplaced by th e earlier officer one Shri I.R. Pradhan (to be checked), therefore, duplicate bi lls had to be obtained. Without discussing anything thereafter, the Enquiry Offi cer held the petitioner negligent in performance of his duties simply by holding that his contention that adequate fund was not made available from Digboi Finan ce, was not a plausible explanation but nothing has been discussed as to why suc h plea was not plausible. With the aforesaid discussions of evidence, the Enquiry Officer in his f 30. indings recorded from paragraphs 12.0 onwards held that there was shortage of ph ysical stocks of MS, HSD and SKO as on 21.5.2005. Referring to the plea of the p etitioner that he did not take joint physical stocks while taking charge from hi s predecessor Shri N.R. Debnath on 1.8.2000 and that losses were carried over fr om his predecessor, the Enquiry officer disbelieve the Ext. D-1 produced by the petitioner and suddenly made the conclusion that such arguments cannot held the petitioner in mitigating the losses.

31. Dealing with the plea of the petitioner in respect of loss caused due to operation / evaporation etc., the Enquiry Officer held that since he did not qu antify the same, his plea was not acceptable. Similarly, while discussing the ev idence in respect of recording the finding also in paragraph 12.1.3, the Enquiry Officer shifted the burden to the petitioner by stating that he did not address the relevant points during his deposition.

32. As regards the plea of the petitioner that such shortage mentioned in th e charge sheet could not have been the result of any negligence on the part of a single man i.e. the petitioner and in case of any loss, entire team involving n umber of persons in the depot were also responsible, the Enquiry officer observ ed in paragraph 12.1.4 that It is logical to infer that (cid:28)unified process of team work is possible only through deliberate and systematic diversion and disposal of products through fraudulent ways and means (cid:29). It is surprising to note that th e Enquiry Officer himself having realized that unified process of team work is p ossible only through deliberate and systematic diversion and disposal of product through fraudulent ways, but shifted the burden to the petitioner by stating in paragraph 12.1.5 of the report that the petitioner in his defence, could not pr ovide any plausible reason that he was not responsible for the losses. Thus, acc ording to the Enquiry Officer, involvement of several persons is possible only t hrough deliberate and systematic diversion and disposal of products through frau dulent ways but so far as the petitioner alone is concerned, he having not provi ded any plausible explanation, it could not be rule out that he was not responsi ble for such losses. By holding so, the Enquiry Officer has opined in paragraph 12.1.7 that the petitioner during his tenure diverted and disposed off products deliberately through fraudulent ways and means incurring abnormal stock loss of MS, HSD and SKO but nowhere in the evidence and / or the discussion of the evid ence, anything has been stated and recorded that the petitioner deliberately and in a particular manner and modus operandi diverted and disposed of the products .

33. Similarly, as regards the plea of the alleged attempt on the part of the petitioner to unload the HSD tank wagon in the early morning of 21.5.2005, the Enquiry Officer has only drawn an inference that the petitioner in making the at tempt to unload the wagons acted with malafide intention to partially cover up h igh stock losses of HSD. There is no evidence to establish the same but yet the Enquiry Officer held the petitioner guilty of the charge by drawing only inferen ces. As regards the alleged suppression on the part of the petitioner, there 34. being no charge levelled against the petitioner, the Enquiry Officer could not h ave dealt with that aspect of the matter beyond the charges levelled against the petitioner.

35. 35 lakhs, the petitioner has been held to be not guilty of the same. As regards the allegation of time barred railway claims amounting to Rs.

36. With the aforesaid reasoning and findings, the Enquiry Officer has drawn the conclusion referred to above. When the disciplinary authority found that wi thout the purported confessional statement made by the petitioner, the charges l evelled against the petitioner, might not get established based on the findings recorded in the enquiry reported, remanded the matter back to the Enquiry office r to deal with the said purported confessional statement. The learned counsel fo r the petitioner has questioned such a course of action on the part of the disci plinary authority contending that a particular gap in the enquiry could not have been filled up by taking recourse to such a procedure to the prejudice of the p etitioner.

37. Acting on the recommendation made by the disciplinary authority, the Enq uiry officer conducted the supplementary enquiry by re-convening the same on 19. 5.2006. A particular witness (MW-5) was recalled, who produced the purported con fessional statement dated 28.5.20-05 (M-31). MW-5 was cross examined, who in his deposition stated that the statement of the petitioner was not marked as confes sional statement. The said statement also does not disclose as to under what cir cumstances, the same was made. M-31 document was signed by Mr. L.N. Phukan, who also acted as the presenting officer, whom the petition could not cross examine as he was not offered for such examination. In the supplementary enquiry, the E nquiry Officer has specifically recorded that MW-5 during his cross examination, evaded giving specific answers to the questions relating to stock loss at the t ime of physical verification prior to handing over charge by the petitioner.

38. Based on the above, the Enquiry Officer held that the Ext. M-31 cannot b e recorded as a confessional statement. In this connection, he has recorded the following findings :- (cid:28)6.0 FINDINGS :

6.1 : On examination of the M-31,it is apparent that ’Confessional Statement’ is not written in M-31. No neutral witness has signed M-31. The word ’voluntary’ is not written in M-31. The circumstances under which it was written are not me ntioned in M-31. Where it was written and when it was written is not mentioned i n M-31. To whom it was addressed and who received it was not mentioned in M-31.

6.2 : On the other hand, CSO in his defence stated that statement of facts on 28.05.05 was made under duress by Sri A. Adut, SM(OPS) who was his immediate Con trolling Officer and Shri L.N. Phukan, CM (M & I/S) who was also his higher auth ority. The statement was not made voluntary and Shri L.N. Phukan dictated the co ntents.

6.3 : On evaluation of the exhibit M-31 per se and the testimony of MW-5, I co me to the conclusion that the M-31 cannot be regarded as a ’confessional stateme nt’ because no neutral witness has signed it, the work ’confessional statement’ is not written in it, the word ’voluntary’ is not written in it, the circumstanc es or the context under which it was written was not mentioned in it, where and when it was written are not mentioned in it, to whom it was addressed and who re ceived it are not mentioned in it. CONCLUSION : 7.0 : 7.1 In view of the fact that the exhibit M-31 cannot be regarded as a ’confe ssional statement’ for the reasons stated above, my findings and conclusions giv en in my Inquiry Report dated 09.02.06 stands unchanged.

8.0 8.1 Corrigendum : Date appeared at the end of the earlier Inquiry Report should be read as DIGBOI : 09.02.06 in place of DIGBOI :09.02.05. (cid:28)

39. On receipt of the supplementary enquiry report, the disciplinary authori ty disagreed with the findings recorded by the Enquiry Officer and thereafter pa ssed the impugned order dated 29.6.2006, dismissing the petitioner from service. In the order of dismissal, the disciplinary authority has recorded the followin g findings :- (cid:28)On careful consideration as above, I find that : Shri PC Das during is tenure at Dharmanagar Depot diverted and disposed • off products deliberately through fraudulent ways and means and caused abnormal stock losses of MS, HSD and SKO. • Shri Das acted with malafide intention to partially cover up high stock losses of HSD by making an abortive attempt on 21.05.05 to unload HSD tank wagon from the railway siding to the depot. • Shri Das acted with malafide intention to suppress information of sudden loss of 1 KM MS between closing stock of 16.02.05 and opening stock of 17.02.05 . • Shri Das acted against interest of the Corporation by not paying on time electricity bills including penalty charges amounting to Rs. 1,15,000 and telep hone bills amounting to Rs. 42,199. On consideration of Shri PC Das’s confessional statement dated 28.05.05, I also find that : • Shri Das diverted 41 KL of SKO to MS tank nos. 9, 10, 11 & 12 between 1s t May’05 to 20th May’05 with malafide intention to make up high MS stock losses. • 5 with malafide intention of disposing the same in the market. Shri Das diverted 24 KL of HSD received from TOP on 11.05.05 and 14.05.0 • Shri Das allowed TT No. AS01J - 5651 with empty chamber to the decanted at Dharmanagar Depot on 10.05.05 despite being informed of one chamber being emp ty by the depot personnel. (cid:28)

40. The aforesaid findings recorded by the disciplinary authority to a great extent is beyond the charges levelled against the petitioner. As discussed abov e, there is no evidence and findings that it is the petitioner who was responsib le for diversion and disposal of product deliberately through fraudulent ways an d means and causing abnormal stock losses of MS, HSD and SKO. There being no evi dence to link up the purported act of the petitioner to unload the tank wagons w ith that of attempt to cover up the loss coupled with the fact that the burden w as shifted to the petitioner to establish that he was not guilty of the said cha rge, the disciplinary authority could not have held the petitioner guilty of the said charges. In this connection, the findings recorded by the Enquiry Officer in paragraphs 11.5.1, 11.5.2, 11.5.3 and 11.8.1 being relevant, are reproduced b elow :- (cid:28)11.5.1 : As regards the charge of diversion of 41 KL SKO into MS tanks between 01.05.05 and 20.05.05 ( Para 4.5 above), MW 2 in his deposition stated that on 0 8.08.05 T/W SR 39398 containing 41.705 KL SKO was unloaded into Ms Tank No. 9, 1 0, 11 & 12 by CSO. In support of this charge, MW 2 produced Exhibit no. M-19. Th e Exhibit M-19 is the tank wagon release certificate dated 08.05.05 jointly sign ed by MW 2 and Railway official (SM, Goods).

11.5.2 : The MW2 stated that he reached the siding at about 9.00 AM on 08.05.05 , it being a holiday (Sunday). He also stated that CSO started unloading operati on of tank wagon before he reached the siding. On checking, he found that SKO in T/W no. SR 39398 was unloaded in Ms tank.

11.5.3: It is observed that wagon placement time has been shown as 9.15 hours o n 08.08.05 in the wagon release certificate (M-19). MW-2 conceded during cross-e xamination after a pause of about 30 minutes that his statement in this regard w as not correct (Page 25 second line from the bottom). As such, the statement of MW-2 in respect of this charge cannot be relied upon. Moreover, there is no mate rial evidence such as product quantity in that particular tank before and after receiving the product on 08.08.05 in support of this charge. As such, the charge is not substantiated.

11.8.1 : As regards the charge of (Para 4.8 above) sudden stock loss of 12 KL MS between the closing stock of 16.02.05 and opening stock of 17.02.05 in MS tan k No. 10, MW-2 produced one photocopy of two pages of tank gauge book (M-5). Bot h CSO & CoE made an observation that the same were not attested and from the app earance it could not be recognized that the same were Corporation’s Stationery. However, the exhibit is relied upon, signature of MW-2 in it is identifiable and as its contents were not challenged during cross-examination by CSO. During cro ss-examination, MW-2 conceded that there were gains of 4.9 cm in tank no.11 and 0.8 cm in tank no.12 between the closing dip of 16.02.05 and opening dip of 17.0 2.05 while tank no.11 was not operated on 16.02.05. As such, loss or gain betwee n the closing and opening stock is not unnatural phenomenon in petroleum storage tanks. (cid:29)

41. As regards the findings recorded in the impugned order of dismissal that the petitioner had diverted 41 KL of SKO to MS tank Nos. 9, 10, 11 & 12 between 1.5.2005 and 20.5.2005 with malafide intention to make up high MS stock losses and also that he had diverted 24 KL of HSD received from TOP on 11.5.2005 and 14 .5.2005 with malafide intention of disposing the same in the market, the same is absolutely in contrast to the findings recorded by the Enquiry Officer.

42. In paragraph 1.4 of the enquiry report, the allegation is in respect of the findings recorded by the disciplinary authority in respect of tank Nos. 9, 1 0, 11 and 12. Dealing with the said charge, the Enquiry Officer having held the petitioner not guilty of the same, the disciplinary authority could not have opi ned just opposite to the same without any disagreement note and providing an opp ortunity of being heard to the petitioner on such disagreement. Same is the case in respect of the findings of the disciplinary authority relating to 24 KL of H SD. As regards the allegation of allowing TT No. AS 01J 5651 with empty chamber, the charge having not been established in the enquiry, the petitioner could not have held to be guilty of the same by the disciplinary authority.

43. As regards the confessional statement, I have verified the same. It is t he plea of the petitioner that the same was forcefully obtained from him he bein g at the receiving end. In this connection, the petitioner has also named the pe rsonnel who were instrumental in obtaining the same. The said confessional state ment was also not exhibited during the enquiry. Even after its exhibition (M-31) , the Enquiry Officer found the same to be not reliable due to the reasons state d in the supplementary report. However, the disciplinary authority again disagre ed with the said supplementary report and made use of the same towards impositio n of penalty against the petitioner. Rule 32 of the Conduct, Discipline and Appeal Rules, 1980 although empow 44. ers the disciplinary authority to order for fresh or further enquiry but the sam e cannot be in the form of filling up the gap. In the instant case, the presenti ng Officer had already submitted the purported confessional statement of the pet itioner along with the written brief but the same was never brought on record by exhibiting the same during the course of enquiry. It was for that reason, the E nquiry Officer rightly rejected the same lest the same would cause prejudice to the petitioner. The Enquiry Officer in his supplementary report also declined to accept the same as confessional statement for the reasons recorded therein. Shr i L.N. Phukan, who was the Presenting Officer of the enquiry proceeding being pr esent while making the purported confessional statement, was a material witness but the petitioner was not allowed to cross examine him. Shri L.N. Phukan also d id not sign M-31 as an independent witness, a fact admitted by MW-3 in his depos ition. He also admitted that the statement does not disclose the place of record ing the same and as to who had received the same. He also evaded giving specific answers to the questions relating to stock loss at the time of physical verific ation prior to handing over charge by the CSO. It was in the aforesaid circumsta nces, the Enquiry officer held that since no neutral witness has signed M-31 cou pled with the fact that the same was not with the expression ’voluntary’ and the circumstances in which the same was made, could not be graded as confessional s tatement.

45. This now leads us to another aspect of the matter which is the plea of t he petitioner that in such a large depot, he alone could not have made the losse s of stock alleged. The running of the depot was a collective responsibility inv olving many Officers and employees. The Enquiry officer has also admitted the sa me in his report while holding that in case of collective responsibility, a prop er designing to do a particular act with the intention to cause loss for unlawfu l gain is required. If that be so, it is not understood as to how the petitioner alone could have done the same all by himself. It is on this count, the petitio ner has raised the specific plea that the maintenance of the depot being a colle ctive responsibility, he alone could not have been held responsible for the alle ged loss.

46. The Division Bench of this Court in Girish Chandra Sarmah Vs. BRPL repo rted in 2006 (1) GLT 235 affirmed by the Apex Court in BRPL Vs. Girish Chandra Sarmah reported in 2008 (1) GLT (SC) 5 dealing with the principles relating to collective responsibility in the decision making process, held that the charges framed against the petitioner involved in the said case was misdirected for the reason that the appellant alone was not entrusted with the particular responsib ility and that the responsibility was with a team. In the instant case also, it was the collective responsibility of the Officers and employees of the Dharmanag ar Depot and the petitioner alone could not have been picked up for the particul ar loss, which according to the MWs was also attributable to operation and evapo ration loss etc coupled with the fact that in most of the elements relating to t he charges, the Enquiry officer held the petitioner not guilty of the same. In Roop Singh Negi (supra), the apex Court dealing with the nature of de 47. partmental enquiry observed that the same is a quashi judicial proceeding and th at the function of the Enquiry Officer is also quashi judicial in nature. As reg ards the documentary evidence adduced in a departmental enquiry, it was held tha t mere production of documents is not enough and that the contents of the docume ntary evidence has to be proved by examining witnesses. As in the instant case, in the said case also, the appellant had allegedly confessed that he was involve d in stealing of Bank Draft Book. It was held that some evidence ought to have b een brought on record that the appellant was involved in stealing and that the m ere so called confession itself was not sufficient. In paragraph 14, 15 and 23 o f the said judgement, the Apex Court observed thus :- Indisputably, a departmental proceeding is a quasi-judicial proceeding. (cid:28)14. The enquiry officer performs a quasi-judicial function. The charges levelled aga inst the delinquent officer must be found to have been proved. The enquiry offic er has a duty to arrive at a finding upon taking into consideration the material s brought on recor4d by the parties. The purported evidence collected during inv estigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was exa mined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was plac ed by the enquiry officer on the FIR which could not have been treated as eviden ce.

15. We have noticed hereinbefore that the only basic evidence whereupon reli ance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to s ign on the said confession, as he was tortured in the police station. The appell ant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even th ere was no indirect evidence. The tenor of the report demonstrates that the enqu iry officer had made up his mind to find him guilty as otherwise he could not ha ve proceeded on the basis that the offence was committed in such a manner that n o evidence was left.

23. Furthermore, the order of the disciplinary authority as also the appella te authority are not supported by any reason. As the order passed by them have s evere civil consequences, appropriate reason should have been assigned. If the e nquiry officer had relied upon the confession made by the appellant, there was n o reason as to why the order of discharge passed by the criminal court on the ba sis of selfsame evidence should not have been taken into consideration. The mate rials brought on record pointing out the guilt are required to be proved. A deci sion must be arrived at on some evidence, which is legally admissible. The provi sions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently wer e not supported by any evidence. Suspicion, as is well known, however high may b e, can under no circumstances be held to be a substitute for legal proof. (cid:29)

48. The decision in Daya Singh (Supra) has been pressed into service to emph asis that the findings arrived at by the Enquiry Officer and Disciplinary Author ity are perverse as the same are not based on evidence.

49. The 3rd decision on which the learned counsel for the petitioner has pla ced reliance is the Jai Bhagwan (supra). In that case, the respondent a Police C onstable was charge sheeted for gross misconduct for demanding illegal gratifica tion of Rs. 100/- from the complainant, which was later returned in presence of officials. It was held that proof of demand and receiving illegal gratification cannot be drawn from returning of the amount. It was further held that suspicion cannot take place of proof. In the instant case also the petitioner was suspect ed to be involved in causing shortage of the products. It was also suspected tha t since he had gone to the railway siding for unloading of the tank wagon, he ha d tried to make good the loss. The Enquiry Officer has drawn an inference on tha t basis without any proof that the petitioner, in fact, had taken recourse to su ch an action to make good the loss. As observed by the Apex Court, suspicion can not take place of proof. The decision in Krushnakant B. Parmar (supra) has been relied upon in su 50. pport of the plea of the petitioner that the findings were arrived at on the bas is of irrelevant facts and surmises. As discussed above, the charges as framed b y the Enquiry Officer and partially held to have been established are not on the basis of any concrete evidence but on the basis of inferences drawn. In the pro cess, the burden was shifted to the petitioner to prove the charge negatively.

51. As to what are the charges against the petitioner has been noted above. Apart from the fact that no distinct and definite article of charge was framed a gainst the petitioner, the Enquiry Officer also fragmented the charge and evolve d his own charge and returned the f