Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 750 (GAU)

Paban Chandra Das v. Indian Oil Corporation Ltd.

2012-06-15

BIPLAB KUMAR SHARMA

body2012
JUDGMENT Hon'ble Mr. Justice B.K. Sharma 1. The petitioner is aggrieved by the Annexure-18 order dated 29.6.2006 by which he has been dismissed from service pursuant to a departmental proceeding conducted against him by Annexure-I communication dated 26.5.2005. The petitioner while was serving as Deputy Manager (Operation) at Dharmanagar in the State of Tripura, was issued with the communication dated 28.5.2005 directing him not to Leave Dharmanagar until further advice. He was also directed to make himself available at his official residence enabling the authority to contact him in respect of an enquiry conducted for abnormal stock shortage. Thereafter, by Annexure-2 order dated 1.6.2005, the petitioner was placed under suspension w.e.f. 1.6.2005. The same was followed by the Anneuxre-3 charge sheet dated 3.6.2005 Leveling the following charges :- Ref. D/O :PCD-872 Dated : 03.06.2005. Shri P.C. Das Emp No 872 DM(Ops). Thro : GM(M)/DGM(MO) Dear Sir, Chargesheet Allegation of commission of the following irregularities by you during your tenure as DM(Ops), Dharmanagar upto 21.5.2005 and thereafter also on 22.05.2005 has been received : 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 21.05.05 morning by you and Shri S. Ray, incumbent DM (Ops), Dharmanagar in presence of Shri A. Adut, SM (Ops), Guwahati as a part of charge handing over/taking 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 Physical Stock as on Discrepancy in KL 21.05.05 21.05.05 (Opening) in (Opening) in KL KL MS 358.778 311.138 (-) 47.640 SKO 1373.106 1333.010 (-) 40.096 HSD 1928.643 1825.525 (-) 103.118 Such high stock losses cannot result in the course of normal depot operations nor happen over a short time period, but can be attributed to deliberate and systematic product diversion and disposal by you over a period time through fraudulent 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 of Dharmanagar Depot with the malafide intention to cover-up the high stock losses which resulted from your fraudulent acts of product diversion. After receipt of your transfer order towards end April'05, you deliberately resorted to book stock manipulation prior to handing over charge of Dharmanagar Depot with the malafide intention to cover-up the high stock losses 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 around 0800 hrs, you made an abortive attempt in the early morning on 21.05.05 to unload HSD tank wagon from the railway to the depot tank with the intention to partially make up HSD stock shortage of 103 KL (of which you were fully aware of) and show the tank wagon as short received. 1.2 On 30.04.05 you prepared two challans - nos. 000558 dated 30.04.2005 for TT No. TRL 4098 in the name of Chandan Majumdar, Kalyanpur and the other no. 000559 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 to partially cover-up high stock losses of SKO resulting from product diverted and disposed off by you earlier through fraudulent means. 1.3 On 17.05.05 you prepared three DDs for Rs. 1, 12, 509/- (No. 720649 dated 17.05.05 for Rs. 16, 509, no. 720654 dtd. 17.05.05 for Rs. 48, 000/- and no. 720655 dated 17.05.05 for Rs. 48, 000/-) which were credited in SAP in the name of Shri KCB Poddar, Mannubazar without the knowledge of the party. This was done by you deliberately with the malafide intention to further manipulate book stock records by falsifying product dispatch so that high stock losses can be partially covered up prior to handing over charge on 21.05.05. 1.4 Between 1st May to 20th May you had diverted 41 KL SKO to MS tanks nos. 9, 10, 11 and 12 with the malafide intention to make up high MS stock losses which resulted from product diverted and disposed off by you earlier through fraudulent 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. 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 handing over charge of Dharmanagar Depot on the same day, on 22.05.05 (Sunday) you entered the depot premises at around 1300 hrs without intimation or permission, broke a glass pane of the back door of the staff office-cum-record room and took away 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 acts of irregularities were reportedly carried out by you during your tenure at Dharmanagar 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 malafide intension to mislead DGM(MO) who was to carry out a surprise stock check at Dharmanagar depot on 1st Feb'05 by showing more than actual quantity of MS in tanks. 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 notice at around 0900 hrs on 17.02.05 by Shri KA Laskar, Depot Supervisor and other concerned staff. However, you did not investigate the matter nor reported the same to higher authority, knowing full well that such high stock variation cannot happen over night. Your inaction can be attributed to the malafide intention to suppress information 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 Dharmanagar 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 carried by TT no. AS-01R-9565 ex-TOP for Dharmanagar on 14.05.05 was also shown as received by you on challan no. 90654792 dated 13.05.05 but was not actually unloaded at the Depot. 90646198 dated 07.05.05 but was not actually unloaded at Dharmanagar Depot. Likewise 12 KL of HSD carried by TT no. AS-01R-9565 ex-TOP for Dharmanagar on 14.05.05 was also shown as received by you on challan no. 90654792 dated 13.05.05 but was not actually unloaded at the Depot. On both the occasions you diverted HSD with malafide intention of disposing off the same in the market. The above instances of irregularities committed by you led us to believe that you, being a responsible officer of the Corporation, have failed to maintain absolute integrity and devotion to duty as expected. You have also committed theft, fraud 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, Discipline & Appeal (CDA) Rules, 1980 and also constitute misconducts within the meaning 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 undersigned 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 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 established in the enquiry are reproduced below : 1.... 1.1 Prior to the joint stock inspection on 21.05.05 which commenced at around 0800 hrs, you made an abortive attempt in the early morning on 21.05.05 to unload HSD tank wagon from the railway to the depot tank with the intention to partially make up HSD stock shortage of 103 KL (of which you were fully aware of) and 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 acts of irregularities were reportedly carried out by you during your tenure at Dharmanagar depot to divert and dispose off products unauthorisedly. 2.1... 1.2.. 1.3.. 1.4.. 1.5.. 2. Over and above what have been stated above, the following fraudulent acts of irregularities were reportedly carried out by you during your tenure at Dharmanagar depot to divert and dispose off products unauthorisedly. 2.1... 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 notice at around 0900 hrs on 17.02.05 by Shri KA Laskar, Depot Supervisor and other concerned staff. However, you did not investigate the matter nor reported the same to higher authority, knowing full well that such high stock variation cannot happen over night. 2.3... 2. It was stated in the charge sheet that the charges leveled 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 & Appeal (CDA) Rules, 1980 and also constitute misconduct within the meaning of Rule 7(1), 7(5) and 7(9) of the CDA Rules. 3. In response to the charge sheet, the petitioner submitted his reply dated 14.7.2005 in which it was contended that allegations had been levelled against the petitioner without furnishing any material particulars. While contending that there was no negligence on the part of the petitioner, the petitioner also stated as follows : 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 against me. I have not even been provided with due opportunity to inspect any such documents, copies of these documents or their inspection, in the alternative, were highly essential for preparing the show cause and also to prepare my defence. I have been highly prejudiced by non-supply of the documents. The principle of Natural justice has thus been violated. That Sir, it is a matter of deep regret tot state here that I have not been given due opportunity to prepare my defence in proper manner. I have been highly prejudiced by non-supply of the documents. The principle of Natural justice has thus been violated. That Sir, it is a matter of deep regret tot state here that I have not been given due opportunity to prepare my defence in proper manner. Vide my letter dated 27.06.05, 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 but 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 collecting 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 appropriately 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 make any statement, I was threatened with dire consequences and a statement, purported to be made by me, was dictated by Sri L.N. Phukan, CM (M&I) Ghy. The said statement has now been projected as one made by me. The said statement, dictated on 28.05.05, is not a voluntary statement made by me. I was forced to put my signature in the statement by threat of instant arrest and torture to be made after arrest. 4. When the matter rested thus, the petitioner was served with Annexure-5 Letter Leveling further allegations of commission of irregularities mentioned in the Letter. Relevant portion of the same is quoted below : The monthly salary of Corporation's employee posted at Dharmanagar Depot was not 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 salary 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 for 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. 5. The above instances shows that the Corporation's fund was being misused by you for 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. 5. In response to the aforesaid additional charge, the petitioner by his Annexure-7 letter dated 2.8.2005 made a request to the ED, IOCL (AOD) to provide him 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 submitted in response to the charges Leveled against him, he denied the same. 6. By Annexure-9 order dated 13.9.2005, the disciplinary authority conveyed the decision to conduct an enquiry into the charges Leveled against the petitioner, being not satisfied with the explanation furnished by the petitioner. By the said Letter, the Presenting Officer (PO) was also appointed. By Annexure-10 letter 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 alias it was contended as follows : That apart, in a departmental proceeding, the principles of natural justice has to be strictly adhered to by affording every opportunity to the delinquent officer to defend himself. In my case, the management did not provide me with the required 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 examination of witnesses agitated non-supply of the copies of documents which the management wanted to use against me in evidence. Documents were, however, exhibited despite my objection. Though the P.O assured me that copies would be supplied, 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 provided any list of witnesses and I was kept in the dark regarding names of witnesses in gross violation of Natural justice. 7. The management has not provided any list of witnesses and I was kept in the dark regarding names of witnesses in gross violation of Natural justice. 7. 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 Annexure-12 letter dated 18.2.2006 enclosing therewith the order dated 17.2.2006 passed by the Disciplinary Authority, by which the petitioner was provided with an opportunity to make representation against the enquiry report. The EO in his report upon assessment of the evidence, recorded the following findings (Relevant portion only): 11.2.4 : CSO did not led any evidence that there was demurrage on account of not 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 malaise intention to partially make up HSD stock 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 appearance 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 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 between the closing and opening stock is not unnatural phenomenon in petroleum shortage 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 evident that CSO committed the acts of suppressing information on high stock loss with malaise intention. 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 evident that CSO committed the acts of suppressing information on high stock loss with malaise intention. 11.9.1 : As regards the charge of (Para 4.9) above) diversion of 24 KL HSD in the 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 stated that the product did not enter the Depot and the product was "sold out' in the market. However, no material evidence was produced to substantiate that the product was "sold out' in the market. Mere verbal evidence given by MW-2 cannot be relied upon without supportive evidence as it was found that he gave inconsistent statement during the inquiry. 11.20.4 : Contention of CSO that adequate impress fund was not made available from Digboi Finance is not plausible in this case. He forwarded other two electricity bills to Guwahati Office for payment as mentioned above. However, the remaining bills were not forwarded to Guwahati office for payment in time. Therefore, 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. 8. Regarding the over all findings in respect of the charges, the Enquiry Officer held thus (relevant portion only) : 12.1.1 : As regards whether 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, 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 charge from his predecessor Sri N.R. Debnath on 01.08.2000. He tried to explain that losses were carried over from his predecessor. The exhibit D-1 produced by him 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, evaporation loss, operation loss and tank "bulging effect', he did not quantify the same. He tried to explain that losses were carried over from his predecessor. The exhibit D-1 produced by him 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, evaporation loss, operation loss and tank "bulging effect', he did not quantify the same. Admittedly, CSO was in charge of the Dharmanagar Depot since 1st August 2000 to 20th May 2005. Four and half years is a long enough time to be conversant with these concepts. In his explanation dated 14.07.05, he also claimed that he worked as an officer in Marketing Depots at Barapani, Khotkhoti and Numaligarh Unit before transferred to Dharmanagar Depot during his thirteen years of career in 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 of number of persons of the Depot and those who were involved had tried to save their 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 diversion 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 shortages 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 diversion 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. 12.1.7 : 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 partially 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. CIO's plea that he tried to unload to avoid demurrage charge (page 53) is an afterthought as there was no demurrage claimed by the Railways for the tank wagon. As such, it is logical to make inference that CSO acted with malaise 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 between 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 hushed up the matter. On the other hand, CSO did not lead any evidence that he either investigated or reported the matter to higher authority. As such, it is proved 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/- (Exhibit 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 charge is proved. 12.7.2 : However, the charge of "time barred" Railway claims amounting to Rs. 35 lacs was not proved for the reasons stated above. 12.8.1 : As regards whether CSO violated laid down Rules of the Corporation, the charge is not proved. 9. As such, the charge is proved. 12.7.2 : However, the charge of "time barred" Railway claims amounting to Rs. 35 lacs was not proved for the reasons stated above. 12.8.1 : As regards whether CSO violated laid down Rules of the Corporation, the charge is not proved. 9. With the aforesaid findings, the Enquiry Office recorded his conclusion as follows : 13.0 : CONCLUSION : 13.1 : On the basis of the above assessment of evidence and findings, it is established 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 to 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 integrity 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 the performance of duty within the meaning of CA Rule 7(9). 10. In response to the aforesaid enquiry report, the petitioner submitted his 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 Officer had taken a too Hyper Technical View of the situation, ordinarily not permissible 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 remitted 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 further proceeding and the report furnished by the Enquiry Officer, not accepting the purported confessional statement. 11. 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 petitioner was given an opportunity to make further representation. For a ready reference, the order dated 15.6.2006 is also reproduced below :- Ref. D/O : PCD-872 Dated : 15.06.2006. 11. 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 petitioner was given an opportunity to make further representation. For a ready reference, the order dated 15.6.2006 is also reproduced below :- Ref. D/O : PCD-872 Dated : 15.06.2006. ORDER Enquiry Officer (EO) has submitted his Supplementary Report dated 30.05.06 on completion of further enquiry proceedings after EO's report dated 09.02.06 was remitted 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 disciplinary 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 applicable to a domestic disciplinary enquiry, as the said section lays down the procedure for recording confession and statement of a person by a Magistrate in course of any investigation into a criminal case. The Enquiry officer has not appreciated the distinction in law between a criminal proceeding and a proceeding relating 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 by CSO on 28.05.05. the alleged infirmities pointed out by the CSO as well as Coe (Co-employee) in the "confessional statement' during cross-examination of MW-5 lose their meaning on a conjoint and coherent reading of the "confessional statement' 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 "confessional statement' was made by him on 28.05.05 under duress appear to be an afterthought, as the matter was not reported by Shri PC Das to his superior authorities after 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. 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 28.05.05 (Exhibit M-31) voluntarily during the fact finding departmental investigation into abnormal shortage of POL products detected at Dharmanagar Depot when the information 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 by 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 conclusion, said Shri PC Das is hereby given another opportunity to make further representation, if any, in writing within 7 days of receipt of this order, failing which it would be presumed that Shri Das has no explanation to offer and further appropriate order as deemed fit shall be passed. Sd/- (B. K. Sarma ) Executive Director & Disciplinary Authority. 12. The petitioner by his additional written brief dated 29.5.2006 raised objection in respect of witness No. M-31 one Shri L.N. Phukan, who conducted the preliminary enquiry, who was appointed as the Presenting Officer. It was contended 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 submitted his Annexure-17 representation dated 21.6.2006 against the aforesaid order of disagreement passed by the disciplinary authority. Thereafter, by Annexure-18 order dated 29.6.2006, the petitioner was dismissed from service. He then preferred 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. 13. I have heard Ms. D. Bergheim, Learned counsel for the petitioner. I have also heard Mr. S.N. Sarma, Learned senior counsel assisted by Mr. A. Jahid, Learned counsel appearing for the respondent Corporation. Ms. Bergheim, Learned counsel for the petitioner in her persuasive pursuits extensively argued in reference 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 remand the matter back to the Enquiry Officer for conducting the enquiry afresh in respect of the purported confessional statement of the petitioner. She also questioned the action on the part of the disciplinary authority to remand the matter back to the Enquiry Officer for conducting the enquiry afresh in respect of the purported confessional statement of the petitioner. She submitted that the disciplinary authority having not exhibited the said confessional statement, it was not open for it to get the same exhibited through a further proceeding. According to her, the confessional statement is not attributable to the petitioner as the same is not in accordance with Law. 14. Referring to the purported contradictions in the evidence Led by the disciplinary authority and the findings recorded by the Enquiry Officer, she submitted that the findings arrived at by the Enquiry Officer being based on no evidence at all, same are to be regarded as perverse with the consequence of interference 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 Singh) (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) 15. As against the aforesaid arguments advanced by the Learned counsel for the petitioner, Mr. S.N. Sarma, Learned senior counsel appearing for the respondent Corporation submitted that the petitioner is precluded from raising any issue beyond the pleadings pertaining to the plea of the findings of the Enquiry Officer 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 be maintained by various Officers with collective responsibility and thus the petitioner could not have been picked up in isolation, Mr. Sara, Learned counsel representing 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 opportunity was given to the petitioner and thus, no prejudice was caused to him. 16. I have very carefully considered the submissions advanced by the Learned counsel for the parties and have also considered the entire materials on record. 17. He submitted that in the enquiry due opportunity was given to the petitioner and thus, no prejudice was caused to him. 16. I have very carefully considered the submissions advanced by the Learned counsel for the parties and have also considered the entire materials on record. 17. The charges against the petitioner have been noted above. In the first charge sheet dated 3.6.2005, the allegation is of abnormal shortage of MS, HSD and 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 deliberate 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 the Dharmanagar Depot. 18. The question that arises for consideration is as to whether along with the allegation of shortage of stocks, the Loss attributed to the petitioner about his deliberate and systematic product diversion and disposal over a period of time through fraudulent ways and means and the alleged recourse to book stock manipulation prior to handing over charge of Dharmanagar Depot, has been established 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 product diversion and disposal by fraudulent means and book stock manipulation by the petitioner to cover up the same is another thing. 19. On perusal of the enquiry report, it is seen that most of the allegations attributed to the petitioner, have been held to be not proved by the Enquiry Officer. While discussing the evidence on record, the Enquiry Officer opined that since the purported confessional statement dated 28.5.2005, although referred to by the Presenting Officer in his written brief but the same having not been produced during the course of enquiry, cannot be taken into consideration as the same would be volatile of the principles of natural justice. While discussing the evidence on record, the Enquiry Officer opined that since the purported confessional statement dated 28.5.2005, although referred to by the Presenting Officer in his written brief but the same having not been produced during the course of enquiry, cannot be taken into consideration as the same would be volatile of the principles of natural justice. Discussing the evidence under the head "Assessment of Evidence", the Enquiry Officer referred to the statement of MW-1, which reads as follows : 11.1.3 : However, MW-1 clarified during cross-examination that there may be variation in volume at receiving end due to change in temperature. MW-1 further clarified that there is no provision of accounting such stock variation due to change in temperature while maintaining stock book/daily loss gain report either in SAP or in stock book (Page 7). 11.1.4 : Similarly, MW-1 clarified during cross-examination that evaporation loss 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 gain 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 stock check report dated 21.05.05 (Page 8). 20. If we go by the aforesaid statement of MW-1, it is the own version of the 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 petroleum products and such Loss was not taken into account while accounting in the Stock Book/ Daily Loss report. The said witness also stated that sealing of operation Loss of the 3 (three) products in question was not taken into account while reflecting the net Loss in the Joint Stock Report dated 21.5.2005. 21. From the aforesaid statement of MW-1, when the possibility of evaporation 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 temperature change, evaporation Loss, operation Loss and Loss due to tank bulging effect, as commented upon upon in paragraph 11.1.6 of the enquiry report. 22. 22. The charge was Leveled 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 was not open for the Enquiry Officer to shift the burden to the petitioner to quantify such variation due to the reasons stated by the MW-1. As regards the charge of manipulation of Book Stock, the Enquiry officer in reference to the statement made by MW-2 and MW-3, has only stated in the enquiry report about the placement of the railway tank wagons at Dharmanagar siding. MW-8 in his deposition stated that unloading was attempted in order to avoid demurrage charges. On this issue 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 the petitioner did not Lead any evidence that there was demurrage on account of not unloading of tank wagons. Only with that observation, the Enquiry Officer recorded in his findings that an inference could be drawn that the plea of the petitioner 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 malaise intention to partially make up the HSD stock shortages. 23. From the above discussion of evidence, two things have emerged - (i) shortage of stock and (ii) the purported attempt of manipulation made by the petitioner. On both counts, the Enquiry Officer shifted the burden to the petitioner to 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 counts and both were attributed to him. The said two elements are shortage of stock and manipulation of stock book to make good the Loss. None of the said elements could be proved in the enquiry by the Management Witnesses. However, the Enquiry officer shifted the burden to the petitioner to prove the negative of the charges. Such a procedure adopted by the Enquiry officer, is not acceptable, inasmuch as, it was for the disciplinary authority to establish the charge against the petitioner. 24. None of the said elements could be proved in the enquiry by the Management Witnesses. However, the Enquiry officer shifted the burden to the petitioner to prove the negative of the charges. Such a procedure adopted by the Enquiry officer, is not acceptable, inasmuch as, it was for the disciplinary authority to establish the charge against the petitioner. 24. In paragraph 11.3.6 of the enquiry report, the Enquiry Officer has absolved the petitioner of the charge of preparation of challis etc. Similarly, in reference to the statement made by MW-2, the Enquiry Officer has held that the particular 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 sheet. Likewise, the charge of diversion of stock was also not held to be established. 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 unnatural phenomenon in petroleum storage tank. While making the said statement, the 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 in 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. 25. Inspire 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 observation only, the Enquiry Officer held the petitioner guilty of suppressing information on high stock Loss with malaise intention. Learned counsel for the petitioner rightly argued that suppression of information being not a charge, the Enquiry officer could not have held the petitioner guilty of the said charge without framing definite article of charge on that count and giving opportunity to the petitioner to defend the charge. 26. In paragraph 11.9.1 dealing with the charge of diversion of HSD by the petitioner 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. 26. In paragraph 11.9.1 dealing with the charge of diversion of HSD by the petitioner 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. 27. 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 not substantiated in the enquiry. In paragraph 11.10.1, the Enquiry Officer observed 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 holding the charge as not substantiated, observed that it is MW-2 who was guilty of unloading. Likewise, the other elements of the charges were held to be not established 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. 28. In paragraph 11.19.1, the Enquiry Officer dealing with the charge of misusing 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. Similarly, in paragraph 11.20.1 dealing with the statement of MW-5, the Enquiry officer has held that there was no delay in payment of electricity bills. However, it was observed that 20 electricity bills (duplicate bills) pertaining to the period 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 30.12.2004 and thus the rebate of Rs. 9282/- could not be availed of by the Corporation. It was the plea of the petitioner that since the bills were misplaced by the earlier officer one Shri I.R. Pradhan (to be checked), therefore, duplicate bills had to be obtained. Without discussing anything thereafter, the Enquiry Officer held the petitioner negligent in performance of his duties simply by holding that his contention that adequate fund was not made available from Digboi Finance, was not a plausible explanation but nothing has been discussed as to why such plea was not plausible. 29. Without discussing anything thereafter, the Enquiry Officer held the petitioner negligent in performance of his duties simply by holding that his contention that adequate fund was not made available from Digboi Finance, was not a plausible explanation but nothing has been discussed as to why such plea was not plausible. 29. With the aforesaid discussions of evidence, the Enquiry Officer in his findings recorded from paragraphs 12.0 onwards held that there was shortage of physical stocks of MS, HSD and SKO as on 21.5.2005. Referring to the plea of the petitioner that he did not take joint physical stocks while taking charge from his predecessor Sheri N.R. Debnath on 1.8.2000 and that Losses were carried over from 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. 30. 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 quantify the same, his plea was not acceptable. Similarly, while discussing the evidence 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. 31. As regards the plea of the petitioner that such shortage mentioned in the 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 number of persons in the depot were also responsible, the Enquiry officer observed in paragraph 12.1.4 that It is Logical to infer that "unified process of team work is possible only through deliberate and systematic diversion and disposal of products through fraudulent ways and means". It is surprising to note that the Enquiry Officer himself having realized that unified process of team work is possible 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 provide any plausible reason that he was not responsible for the Losses. Thus, according to the Enquiry Officer, involvement of several persons is possible only through deliberate and systematic diversion and disposal of products through fraudulent ways but so far as the petitioner alone is concerned, he having not provided any plausible explanation, it could not be rule out that he was not responsible 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 evidence, anything has been stated and recorded that the petitioner deliberately and in a particular manner and modus operandi diverted and disposed of the products. 32. 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 attempt to unload the wagons acted with malaise intention to partially cover up high 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 inferences. 33. As regards the alleged suppression on the part of the petitioner, there being no charge Leveled against the petitioner, the Enquiry Officer could not have dealt with that aspect of the matter beyond the charges Leveled against the petitioner. 34. As regards the allegation of time barred railway claims amounting to Rs.35 Lakhs, the petitioner has been held to be not guilty of the same. 35. With the aforesaid reasoning and findings, the Enquiry Officer has drawn the conclusion referred to above. When the disciplinary authority found that without the purported confessional statement made by the petitioner, the charges Leveled against the petitioner, might not get established based on the findings recorded in the enquiry reported, remanded the matter back to the Enquiry officer to deal with the said purported confessional statement. The Learned counsel for the petitioner has questioned such a course of action on the part of the disciplinary 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 petitioner. 36. The Learned counsel for the petitioner has questioned such a course of action on the part of the disciplinary 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 petitioner. 36. Acting on the recommendation made by the disciplinary authority, the Enquiry 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 confessional 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 confessional statement. The said statement also does not disclose as to under what circumstances, 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 Enquiry Officer has specifically recorded that MW-5 during his cross examination, evaded giving specific answers to the questions relating to stock Loss at the time of physical verification prior to handing over charge by the petitioner. 37. Based on the above, the Enquiry Officer held that the Ext. M 31 cannot be recorded as a confessional statement. In this connection, he has recorded the following findings :- 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 mentioned in M-31. Where it was written and when it was written is not mentioned in 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 Controlling Officer and Sheri L.N. Phukan, CM (M & I/S) who was also his higher authority. The statement was not made voluntary and Sheri L.N. Phukan dictated the contents. 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 Controlling Officer and Sheri L.N. Phukan, CM (M & I/S) who was also his higher authority. The statement was not made voluntary and Sheri L.N. Phukan dictated the contents. 6.3 : On evaluation of the exhibit M-31 per se and the testimony of MW-5, I come to the conclusion that the M-31 cannot be regarded as a "confessional statement" 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 circumstances 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 received it are not mentioned in it. 7.0 : CONCLUSION : 7.1 In view of the fact that the exhibit M-31 cannot be regarded as a "confessional statement" for the reasons stated above, my findings and conclusions given in my Inquiry Report dated 09.02.06 stands unchanged. 8.0 Corrigendum : 8.1 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. 38. On receipt of the supplementary enquiry report, the disciplinary authority disagreed with the findings recorded by the Enquiry Officer and thereafter passed the impugned order dated 29.6.2006, dismissing the petitioner from service. In the order of dismissal, the disciplinary authority has recorded the following findings : On careful consideration as above, I find that : • Sheri 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. • Sheri Das acted with malaise 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. • Sheri Das acted with malaise 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. • Sheri Das acted against interest of the Corporation by not paying on time electricity bills including penalty charges amounting to Rs. 1, 15, 000 and telephone bills amounting to Rs. 42, 199. • Sheri Das acted with malaise 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. • Sheri Das acted against interest of the Corporation by not paying on time electricity bills including penalty charges amounting to Rs. 1, 15, 000 and telephone bills amounting to Rs. 42, 199. On consideration of Sheri PC Dais's confessional statement dated 28.05.05, I also find that : • Sheri Das diverted 41 KL of SKO to MS tank nos. 9, 10, 11 & 12 between 1st May'05 to 20th May'05 with malaise intention to make up high MS stock losses. • Sheri Das diverted 24 KL of HSD received from TOP on 11.05.05 and 14.05.05 with malaise intention of disposing the same in the market. • Sheri 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 empty by the depot personnel. 39. The aforesaid findings recorded by the disciplinary authority to a great extent is beyond the charges Leveled against the petitioner. As discussed above, there is no evidence and findings that it is the petitioner who was responsible for diversion and disposal of product deliberately through fraudulent ways and means and causing abnormal stock Losses of MS, HSD and SKO. There being no evidence to Link up the purported act of the petitioner to unload the tank wagons with that of attempt to cover up the Loss coupled with the fact that the burden was shifted to the petitioner to establish that he was not guilty of the said charge, 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 below : 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 08.08.05 T/W SR 39398 containing 41.705 KL SKO was unloaded into Ms Tank No. 9, 10, 11 & 12 by CSO. In support of this charge, MW 2 produced Exhibit no. M-19. The Exhibit M-19 is the tank wagon release certificate dated 08.05.05 jointly signed by MW 2 and Railway official (SM, Goods). In support of this charge, MW 2 produced Exhibit no. M-19. The Exhibit M-19 is the tank wagon release certificate dated 08.05.05 jointly signed 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 operation 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 on 08.08.05 in the wagon release certificate (M-19). MW-2 conceded during cross-examination after a pause of about 30 minutes that his statement in this regard was 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 material 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 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 appearance 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 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 between the closing and opening stock is not unnatural phenomenon in petroleum storage tanks. 40. As regards the findings recorded in the impugned order of dismissal that the petitioner had diverted 41 KL of SKO to MS tank Nos. As such, loss or gain between the closing and opening stock is not unnatural phenomenon in petroleum storage tanks. 40. 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 malaise 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 malaise intention of disposing the same in the market, the same is absolutely in contrast to the findings recorded by the Enquiry Officer. 41. 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, 10, 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 opined just opposite to the same without any disagreement note and providing an opportunity 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 HSD. 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. 42. As regards the confessional statement, I have verified the same. It is the plea of the petitioner that the same was forcefully obtained from him he being at the receiving end. In this connection, the petitioner has also named the personnel who were instrumental in obtaining the same. The said confessional statement 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 stated in the supplementary report. However, the disciplinary authority again disagreed with the said supplementary report and made use of the same towards imposition of penalty against the petitioner. 43. Rule 32 of the Conduct, Discipline and Appeal Rules, 1980 although empowers the disciplinary authority to order for fresh or further enquiry but the same cannot be in the form of filling up the gap. However, the disciplinary authority again disagreed with the said supplementary report and made use of the same towards imposition of penalty against the petitioner. 43. Rule 32 of the Conduct, Discipline and Appeal Rules, 1980 although empowers the disciplinary authority to order for fresh or further enquiry but the same cannot be in the form of filling up the gap. In the instant case, the presenting Officer had already submitted the purported confessional statement of the petitioner 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 Enquiry 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. Sheri L.N. Phukan, who was the Presenting Officer of the enquiry proceeding being present while making the purported confessional statement, was a material witness but the petitioner was not allowed to cross examine him. Sheri L.N. Phukan also did not sign M-31 as an independent witness, a fact admitted by MW-3 in his deposition. He also admitted that the statement does not disclose the place of recording 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 verification prior to handing over charge by the CSO. It was in the aforesaid circumstances, the Enquiry officer held that since no neutral witness has signed M-31 coupled 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 statement. 44. This now Leads us to another aspect of the matter which is the plea of the petitioner that in such a Large depot, he alone could not have made the Losses of stock alleged. The running of the depot was a collective responsibility involving many Officers and employees. The Enquiry officer has also admitted the same in his report while holding that in case of collective responsibility, a proper designing to do a particular act with the intention to cause Loss for unlawful gain is required. The running of the depot was a collective responsibility involving many Officers and employees. The Enquiry officer has also admitted the same in his report while holding that in case of collective responsibility, a proper designing to do a particular act with the intention to cause Loss for unlawful 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 petitioner has raised the specific plea that the maintenance of the depot being a collective responsibility, he alone could not have been held responsible for the alleged Loss. 45. The Division Bench of this Court in Girish Chandra Sarmah Vs. BRPL reported 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 responsibility 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 Dharmanagar Depot and the petitioner alone could not have been picked up for the particular Loss, which according to the MWs was also attributable to operation and evaporation Loss etc coupled with the fact that in most of the elements relating to the charges, the Enquiry officer held the petitioner not guilty of the same. 46. In Roop Singh Negi (supra), the apex Court dealing with the nature of departmental enquiry observed that the same is a quasi judicial proceeding and that the function of the Enquiry Officer is also quasi judicial in nature. As regards the documentary evidence adduced in a departmental enquiry, it was held that mere production of documents is not enough and that the contents of the documentary 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 involved in stealing of Bank Draft Book. It was held that some evidence ought to have been brought on record that the appellant was involved in stealing and that the mere so called confession itself was not sufficient. As in the instant case, in the said case also, the appellant had allegedly confessed that he was involved in stealing of Bank Draft Book. It was held that some evidence ought to have been brought on record that the appellant was involved in stealing and that the mere so called confession itself was not sufficient. In paragraph 14, 15 and 23 of the said judgement, the Apex Court observed thus : 14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on recor4d by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alias, was placed by the enquiry officer on the FIR which could not have been treated as evidence. 15. We have noticed hereinbefore that the only basic evidence whereupon reliance 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 sign on the said confession, as he was tortured in the police station. The appellant 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 there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he could not have proceeded on the basis that the offence was committed in such a manner that no evidence was left. 23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the order passed by them have severe civil consequences, appropriate reason should have been assigned. 23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the order passed by them have severe civil consequences, appropriate reason should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions 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 were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof. 47. The decision in Daya Singh (Supra) has been pressed into service to emphasis that the findings arrived at by the Enquiry Officer and Disciplinary Authority are perverse as the same are not based on evidence. 48. The 3rd decision on which the Learned counsel for the petitioner has placed reliance is the Jai Bhagwan (supra). In that case, the respondent a Police Constable was charge sheeted for gross misconduct for demanding illegal gratification 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 suspected to be involved in causing shortage of the products. It was also suspected that since he had gone to the railway siding for unloading of the tank wagon, he had tried to make good the Loss. The Enquiry Officer has drawn an inference on that basis without any proof that the petitioner, in fact, had taken recourse to such an action to make good the Loss. As observed by the Apex Court, suspicion cannot take place of proof. 49. The Enquiry Officer has drawn an inference on that basis without any proof that the petitioner, in fact, had taken recourse to such an action to make good the Loss. As observed by the Apex Court, suspicion cannot take place of proof. 49. The decision in Krushnakant B. Parmar (supra) has been relied upon in support of the plea of the petitioner that the findings were arrived at on the basis of irrelevant facts and surmises. As discussed above, the charges as framed by 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 process, the burden was shifted to the petitioner to prove the charge negatively. 50. 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 against the petitioner, the Enquiry Officer also fragmented the charge and evolved his own charge and returned the findings on that basis. Such a procedure adopted by the Enquiry officer naturally caused prejudice to the petitioner. On a total reading of the findings of the Enquiry officer, there are inherent contradictions coupled with the fact that there is no definite findings which can be said to be based on the evidence. Most of the elements of the charges held to have been established are on the basis of the inferences drawn and purported failure of the petitioner to prove negatively. 51. As discussed above, the charge against the petitioner was two fold. It was alleged that abnormal shortages of MS, HSD & SKO were detected and that the same was attributable to deliberate and systematic product diversion and disposal by the petitioner through fraudulent ways and means. There is absolutely no evidence to show that the petitioner was responsible for disposal of the products by fraudulent means. As regard shortage of the product, there are various explanations for the same, such as, shortage from before, shortage due to operation and evaporation, etc. This is coupled with the fact that the petitioner alone was not responsible for running the depot containing huge quantities of the products. It was a collective responsibility of the Officers and employees to run the depot in a systematic and safe manner. This is coupled with the fact that the petitioner alone was not responsible for running the depot containing huge quantities of the products. It was a collective responsibility of the Officers and employees to run the depot in a systematic and safe manner. The Enquiry Officer himself has ruled that for fraudulent diversion of products by a group of men, a systematic effort will be required. If that be so, it is not understood as to how the petitioner alone could make the said effort. 52. In view of the above, the impugned order of dismissal dated 29.6.2006 (Annexure-18) stands set aside and quashed. Consequently, the petitioner shall stand reinstated in service with continuity in service and consequential service benefits. However, in the facts and circumstances, he will not be entitled to any back wages for the period of suspension followed by the period of dismissal from service except notional fixation of pay. The writ petition is allowed to the extent indicated above. There shall be no order as to costs. Petition allowed.