JUDGMENT :- 1. The Official Liquidator has filed a report dated 18th February, 2013 praying for sanction to terminate with immediate effect the services of Shri S.M. Shetty, company paid Group 'D' Peon. According to the Official Liquidator the misconduct against Shri Shetty has been proved considering the report of the enquiry officer and the explanation offered by Shri Shetty and it is grave and of serious nature warranting the punishment of removal from service. The Official Liquidator states that he has also considered the past record of the employee and there are no extenuating circumstances warranting any lenient view. 2. The issue relates to handing over of certain leased assets that were in the factory site of M/s. Otoklin Plants & Equipments Limited (in liquidation) at Kandla, Gandhidham, Gujarat. Let us consider what was the act or omission or misconduct of Shri Shetty which has made the Official Liquidator to recommend the highest punishment that he could grant pursuant to the service conditions of the Company Paid Staff settled by this court from time to time, the last one being by an order dated 26th April, 1994. It will be useful to reproduce paragraph 4 (xii), (xiii) and (xv) of the said order and it reads as under :- “(xii) No person shall be employed as a Company Paid Staff without prior sanction of this court. (xiii) Services of the Company Paid Staff shall not be terminated without prior sanction of this court. (xv) In case it is found that any member of the Company Paid Staff is guilty of dereliction of duty, it will be open for the Official Liquidator to take appropriate action including termination of services against such member subject to granting him an opportunity of hearing and sanction of this court.” 3. Pursuant to an order dated 10th April, 2003 this court directed the Official Liquidator to hand over leased equipments belonging to M/s. Centurion Bank Limited (CBL) through the Court Receiver. In order to comply with the order dated 10th April, 2003, the Official Liquidator vide office order dated 26th June, 2003 directed Shri S.M. Shetty, company paid Peon and Shri C.L. Saraiya, the then Junior Technical Assistant (JTA) to proceed to the factory site of M/s. Otoklin Plants & Equipments Limited at Kandla, Gandhidham, Gujarat to hand over through the Court Receiver the leased assets that belonged to CBL. The factory premises it should be noted was situated at Sector IV, Kandla Special Free Trade Zone, Kandla, which means inside a customs notified area. 4. Shri Saraiya and Shri Shetty reached the site on 1st July, 2003. When these two gentlemen reached the site, there were two representatives from the Court Receiver's office, viz., Shri P.S. Rao and Shri Mangesh Jog and two representatives from CBL, viz., Shri Srinivasan and Shri Mahesh Rane. Apart from these six persons there were representatives of the person who had purchased the equipments from M/s. Centurion Bank Limited to take delivery of the same through the Court Receiver. 5. On 1st July, 2003 Shri Saraiya and Shri Shetty then went to the office of the customs for obtaining permission to give delivery of the leased equipments to CBL through Court Receiver. The necessary permission was granted only on 2nd July, 2003 and hence the delivery commenced from 3/4th July, 2003 and it went on till 9th August, 2003. On 3/4th July, 2003 the representative of the Court Receiver – P.S. Rao who was also a valuer, identified the leased equipments by putting a mark on each of the equipment - “CBL” - denoting Centurion Bank Limited. At the time of marking, the representatives of the customs authorities were also present. Alongside there were machineries that belonged to a third party, viz., Al-Qahtani. So far so good. What happened during these 40 days period is that alongwith the leased assets that CBL were entitled to take away, CBL/its purchasers allegedly took away part of the machineries that belonged to Al-Qahtani. 6. It has been noted in the oral order dated 21st June, 2004 of a single judge of this court (A.M. Khanwilkar, J. as he then was) that the general conditions of all the equipments/machineries were found to be in deteriorated condition due to lack of maintenance. Equipments were also found to be exposed to atmosphere, the roofing sheets/shed having fallen, broken and the shed was found to be extensively damaged due to natural calamities. Some of the parts forming part of the equipments were also found in dismantled condition with no markings over it. 7. Shri Shetty after the delivery was over returned to mumbai. This was some time in the second week of August, 2003. 8. Some of the parts forming part of the equipments were also found in dismantled condition with no markings over it. 7. Shri Shetty after the delivery was over returned to mumbai. This was some time in the second week of August, 2003. 8. In December, 2003 when the representatives of Al-Qahtani went to take delivery of their equipments, it was noticed that a major part of their equipments were missing. When Al-Qahtani brought this to the notice of the Official Liquidator, the Official Liquidator recorded the statement of Shri Shetty on 23rd December, 2003. This statement has been signed by Shri S.M. Shetty, Shri S.R. Kom, the then Official Liquidator, Shri P.G. Rao, Deputy Director (Tech.), Shri S.D. Patil, STA and Shri Mohanan P.N., Senior Assistant. Thereafter Shri Shetty addressed a letter dated 6th January, 2004 to the Official Liquidator. The enquiry officer has placed reliance on both these documents, viz., statement recorded on 23rd December, 2003 and letter dated 6th January, 2004 in his report dated 20th May, 2011 while holding Shri Shetty guilty of dereliction of duty and concealment of fact of removal of the machines belonging to Al-Qahtani which has prompted the Official Liquidator to recommend termination of services. 9. By an office order dated 25th November, 2004 issued by the Official Liquidator, Shri Shetty was suspended with immediate effect till outcome of the findings of the enquiry which was to go on. Shri Shetty has been suspended with effect from 25th November, 2004. As subsistence allowance, he was initially paid half salary which was subsequently revised to 75%. Shri Shetty filed a writ petition challenging the order of suspension and praying that he be resumed in his regular employment. The said petition came to be disposed by an order dated 16th January, 2006 whereby this court directed the Union of India through Official Liquidator to pay full salary to Shri Shetty towards subsistence allowance but declined to grant the prayer of resumption in regular employment. Since 25th November, 2004 Shri Shetty has been under suspension and as on date it is more than 11 years and he is getting 100% subsistence allowance. 10. As per the report filed by the Official Liquidator, Deputy Official Liquidator - Shri N. Chinnachamy was appointed as Enquiry Officer pursuant to an order dated 10th February, 2011 passed by this court read with Official Liquidator's office order dated 15th February, 2011. 10. As per the report filed by the Official Liquidator, Deputy Official Liquidator - Shri N. Chinnachamy was appointed as Enquiry Officer pursuant to an order dated 10th February, 2011 passed by this court read with Official Liquidator's office order dated 15th February, 2011. This was almost 8 years after the incident. The enquiry officer has filed a report dated 20th May, 2011. He has admitted that no formal charge sheet was issued to Shri Shetty. The conclusions are in paragraph 15 of the report which reads as under :- “15. Based on the statement made by Mr. S.M. Shetty on 16th April, 2011, the statement made by Mr. C.L. Saraiya on 2nd May, 2011, the statements made by Shri A.W. Ansari and Shri S.R. Kom the then Officers of the Official Liquidator and on examination of documents available in the files of the company in liquidation, while delivering the leased machines to Court Receiver belongs to CBL and during the same period the machines of Al-Qahtani were also been removed by the dismantling agent of the CBL when Shri S.M. Shetty was present at the site, thus Mr. Shetty did not discharged his duties entrusted to him as per the direction of the Hon'ble High Court order dated 10th April, 2003. Apart from that Shri S.M. Shetty in his explanation dated 6th January, 2004 submitted to the Official Liquidator, he admitted that there was lapse on his part in discharging his duty while delivering the leased machines to the Court Receiver belongs to the CBL. As a result, the machines belongs to Al-Qahtani have also been removed by the dismantling agent of the CBL. In this manner Mr. Shetty derelict his duty and concealed the fact of removal of the machines belongs to Al-Qahtani from the site.” 11. I have heard the counsels and considered the enquiry report and documents. It is true that Shri Shetty was present at site between 1st July, 2003 to 9th August, 2003 but in the entire report the enquiry officer has not dealt with as to what was the role of Shri Shetty and what was he supposed to do at Kandla. In the enquiry report he has relied on the statement made by Shri C.L. Saraiya and statements made by Shri A.W. Ansari and Shri S.R. Kom. In the enquiry report he has relied on the statement made by Shri C.L. Saraiya and statements made by Shri A.W. Ansari and Shri S.R. Kom. He has also, in the report in paragraph 10, mentioned that apart from the enquiry of Shri Shetty, there are four witnesses, viz., Shri C.L. Saraiya, the then JTA, Shri P.N. Mohanan, the then Senior Assistant company paid, Shri A.W. Ansari, the then Deputy Official Liquidator and Shri S.R. Kom, the then Official Liquidator have been examined on 2nd May, 2011 and 4th May, 2011 and the witness except Shri P.N. Mohanan have submitted their statement in writing with regard to the enquiry against Shri Shetty. 12. The counsel for the Official Liquidator in fairness stated that none of these witnesses were made available for cross examination by Shri Shetty. Infact Shri Shetty has also, as recorded in paragraph 8 of the enquiry report, mentioned that he had sought details vide his letter dated 15th April, 2011 which was not provided. The enquiry officer has based his conclusion on Shetty's statement dated 16th April, 2011 but Shetty vide his letter dated 18th April, 2011 has objected and stated that under duress he has been made to sign a wrong statement on 16th April, 2011. If this is the position, the same is in violation of principles of natural justice. 13. The counsel for Shri Shetty submitted a compilation of documents which included a memorandum of charges issued by the Government of India, Ministry of Company Affairs, Office of the Regional Director, Western Region to Shri C.L. Saraiya; copy of the true translation of the FIR lodged by Prakash K. Kale from the office of the Official Liquidator with the Gandhidham Police Station; copy of the minutes circulated by the Official Liquidator recorded at the time of taking possession of the assets of the company (in liquidation) on 12th June, 2002; the memorandum issued to Shri Saraiya by the Regional Director in the Ministry of Company Affairs; articles to charge against Shri Saraiya, statement of imputation in support of article of charge framed against Shri Saraiya and examination in chief together with cross examination by Shri Saraiya of various persons during the enquiry conducted against Shri Saraiya and one of them was Shri Shetty and the other was Shri Kale, who lodged the FIR on behalf of the Official Liquidator. Shri Thakkar, counsel for the Official Liquidator had no objection in taking these documents on record. 14. The enquiry officer has not even referred to any of these documents in his report particularly the FIR, examination in chief of Shri Shetty recorded by the Regional Director, who was the enquiry officer on 12th/13th July, 2005 and the statement of Shri Prakash K. Kale. If one considers the FIR which was filed with Gandhidham Police Station on behalf of the Official Liquidator, Shri Shetty is not one of the accused. The FIR has been filed against Shri Mahesh Rane, Shri Srinivasan, both representatives of CBL and D.K. Talwar and Irshad both agents of CBL for removing goods. The FIR has been lodged on 20th January, 2004 whereas the first statement of Shri Shetty was recorded on 23rd December, 2003 by the Official Liquidator on which reliance has been placed by the enquiry officer. On 2nd January, 2004 an office memorandum has been issued to Shri Shetty asking him to explain why disciplinary action should not be taken against him for dereliction of duty and concealment of facts. In the FIR dated 20th January, 2004 it is stated that the accused with the help of 20 labourers loaded the machinery belonging to Al-Qahtani and having no CBL mark representing that the same belonged to CBL and having full knowledge that the same did not belong to them and dishonestly and to ensure gain for them and without taking into confidence Official Liquidator's representative Shri Shetty. From the FIR it also appears that when the items were being removed not just these accused, the 22 labourers and Shri Shetty were present but also customs officers and 30 security guards, 2 gun men and 3 supervisors of Crack Agency Private Limited for each shift have been present. It is also stated that the representatives of CBL falsely represented to Shri Shetty, the representative of the Official Liquidator, that the machinery of Al-Qahtani also belonged to CBL and thus by making false representation as to the said machinery belonging to them, they have loaded the same in the trucks and they have taken the same. From the FIR lodged by the Official Liquidator it is quite apparent that Shri Shetty himself was a victim of misrepresentation by third parties. 15. From the FIR lodged by the Official Liquidator it is quite apparent that Shri Shetty himself was a victim of misrepresentation by third parties. 15. From the minutes of the meeting recorded at the time of taking possession of the equipments by the representative of the Official Liquidator, it appears that the site was a 50 acres plot of land at Kandla Special Free Trade Zone and the plot did not have any compound wall though the Kandla Special Free Trade Zone has a Metallic Framed Netting. It also appears that it is a custom bonded area. From the statement of one P.S. Rao, who was deputed by the Court Receiver, recorded on 12th July, 2005 before the enquiry conducted by the office of the Regional Director, Western Region, it appears that custom officers were present through out when the machineries being removed. From the statement it also appears that even the custom authorities wanted to ensure that only materials belonging to CBL were to be removed and for that reason identification was to be done. It is also mentioned that there were frequent theft happening in the site. It is necessary to reproduce the following portion from the statement : “Question : Whether, you were aware of the complaints made by the Security deployed there, were theft at the site very frequently due to poor fencing of the factory premises? Answer : I was present at the time of security person complaining to representative of Bank of Baroda and Official Liquidator about frequent theft. However, from my own knowledge I have seen many of the items of machineries had been vandalized during the course of several inspection visits to the plant.” 16. In the examination in chief of Shri Shetty conducted by the enquiry officer, Office of the Regional Director, Western Region on 13th July, 2005 he has stated that he had spoken to Official Liquidator as well as Deputy Official Liquidator Shri Ansari and requested for one more person to assist him in the process of exercising his duties but they told him to carry on his stay and he had nothing to do rather than signing delivery challan. The question and answer recorded by the enquiry officer, Officer of the Regional Director, Western Region of Shri Shetty some of which are reproduced are as under :- “Question : Since how long you were there? The question and answer recorded by the enquiry officer, Officer of the Regional Director, Western Region of Shri Shetty some of which are reproduced are as under :- “Question : Since how long you were there? Answer : From 1.7.03 to 9.8.03, I was there. Question : What are the works you attended over there? Answer : They took me to customs office on the first day along with 7 persons and took permission from the customs officials. Thereafter, we went to identify the machineries belonging to CBL and before dismantling, the name and number of the machine will be indicated to the customs official. Thereafter, all the machines were dismantled and delivered one after one till 9.8.03. Dismantling and delivery was done simultaneously. During my stay I talked to Official Liquidator as well as Deputy Official Liquidator, Shri Ansari and requested for one more person to assist me in the process of exercising my duties. But they said you carry on your stay and you have nothing to do rather then signing delivery challan. So you are, therefore, directed to stay till the completion of handing over the machine to CBL and further one more order was issued and faxed to me on 5.8.04 to hand over deliver process of Pipes (398) to ONGC. Question : Do you have any knowledge during the course of handing over the machineries to CBL some other machineries was also picked up by bank people? Answer : I have no knowledge about the subject and in addition I was asked to sign delivery challan; what was mentioned in it was not known to me. The same process was being carried out on the directions of Shri Saraiya and OL and Dy. OL to whom I talked over phone during the period who also told me to sign the delivery challan. Question : Who authorised you to give delivery? Answer : Mr. Saraiya directed me while going that you should sign delivery challan. Question : Do you know what were the item that were being lifted from the premises by the CBL? Answer : I have no knowledge what were the items being lifted. In fact, it was job of Court Receiver. I was only directed to be physically present and sign the challans. Question : How long dismantling work took place? Question : Do you know what were the item that were being lifted from the premises by the CBL? Answer : I have no knowledge what were the items being lifted. In fact, it was job of Court Receiver. I was only directed to be physically present and sign the challans. Question : How long dismantling work took place? Answer : Dismantling and delivery work were carried for a period of 40 days. Question : How many hours per day did the work was carried on? Answer : 10.00 A.M. To 7-8 PM. Question : How many persons were involved in this work? Answer : Total 52 including myself. Question : Delivery work was in process, the machineries belong to Al-Qahtani , what do you say? Answer : I have no technical knowledge of identification of machineries. I cannot tell about the machineries; to whom it belongs.” 17 In the examination in chief and cross examination by Shri Saraiya and Shri Prakash K. Kale on 13th July, 2005 in the enquiry conducted by the enquiry officer, Office of the Regional Director, Western Region, also gives an indication that Shri Shetty also has been a victim of misrepresentation by the representatives of CBL. As to the removal of machines belonging to Al-Qahtani, Shri Kale has stated as under :- “Document No.9 is the FIR, that I have lodged with the Gandhidham Police Station at Kutch on 20.1.2004 before filing FIR, I called for relevant documents from the Office of the Official Liquidator as required by SHO. Thereby, I came to know that Mr. Saraiya in has stated that “During the period from 3.7.03 to 9.8.03 the work of delivery of machinery was done as per the delivery challan signed by all the persons personally present there. Delivery challan shows the details of Truck Nos. and weight and details of the machinery and spare parts etc. There were about 51 Trucks used for the removal of the said machineries. Delivery challan shows the details of Truck Nos. and weight and details of the machinery and spare parts etc. There were about 51 Trucks used for the removal of the said machineries. During this period the other machineries of M/s. Al-Qahtani pipe and coating terminal which did not marked with “CBL” were also taken by the representative of Centurian Bank by saying falsely that all the properties belong to them only to Shri S.M. Shetty, the representative of Official Liquidator and took away in the above said 51 trucks used for the said purpose” I further mentioned in the FIR that “On 16.12.03 while examining the facts, Shri Dhiraj Kumar, Security Supervisor and Shri Vijay Pal Singh, the Gunman informed that during 1.7.03 to 9.8.03 the representative of Centurian Bank took away the machineries of M/s. Al-Qahtani pipe and caoting terminal along with the machineries of M/s. Centurian Bank by falsely saying that all these equipments belong to them and also did not give any list to the security guards. As explained above during the period from 3.7.03 to 9.8.03, the representative of the Centurina Bank Mumbai (1) Shri Mahesh Rane and (2) Shri Srinivasan and their two representatives Shri D.K. Talwar and Shri Irshad alongwith the 20 labourers took away the machineries which were not marked with the word “CBL” and which were belonging to M/s. Al-Qahtani pipe and coating terminal and which they were knowing that it was not belonging to the Centurian Bank and intentionally for their personal benefit and without taking into the confidence the representative Shri S.M. Shetty of the Office of the Official Liquidator and without informing any thing, took away by cheating and by making fraud the machineries of M/s. Al-Qahtani pipe and coating terminal along with their CBL machineries of Rs.4 crores appropximately in 51 Trucks engaged for the purpose of delivery of the machineries. As they have made the fraud, I on behalf of my office and as per the specific letter of the OL, dt.18.1.2004 would like to give my complaints against them and also against those whose names come in light during the course of investigation. The documents which I have submitted to the Police Station along with the complaint will be produced to you later on after the same will be obtained from my office.” A copy of the complaint made in Gujarati Language on 16.12.03. The documents which I have submitted to the Police Station along with the complaint will be produced to you later on after the same will be obtained from my office.” A copy of the complaint made in Gujarati Language on 16.12.03. I am identifying the same which is accompanying the FIR I have already identified.” 18. None of this even find a mention in the enquiry report given by Shri N. Chinnachamy. Moreover the enquiry by the office of the Official Liquidator itself began only on or about February/March, 2011 almost 8 years after that incident. This delay itself vitiates the enquiry. 19. The counsel for the Official Liquidator submitted that even if there is a delay it can affect only provided prejudice is caused. The counsel for the Official Liquidator relied upon a judgment of the Apex Court in the matter of State of Punjab and others vs. Chaman Lal Goyal, 1995 (2) SCC 750 and Aligarh Muslim University and others vs. Mansoor Ali Khan, 2000 (7) SCC 529 . Infact in the matter of State of Punjab and others (supra) paragraph 9 reads as under :- “9. Now remains the question of delay. There is undoubtedly a delay of five and a half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the fact-, of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing. Now, let us see what are the factors in favour of the respondent. a. .............. b. .............. c. ..............” 20. The counsel for the Official Liquidator also submitted that Shri Shetty was not given opportunity to cross examine Shri Kom, Shri Ansari, Shri Mohanan and Shri S.D. Patil because he had already admitted that he was guilty. The counsel relied upon the judgment in the matter of Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution vs. Educational Appellate Tribunal and another, (1999) 7 SCC 332 . The counsel also relied upon the judgment in the matter of State Bank of Patiala and others vs. S.K. Sharma, (1996) 3 SCC 364 to submit that principles of natural justice cannot be reduced to any hard and fast formulae and at the most not giving him an opportunity to cross examine is only a voilation of a procedural provision and no prejudice has been caused to him. The fact is, the enquiry officer has called four gentlemen as witnesses and also relied on statement of three (one did not give his statement). We do not have the benefit to consider these statements as they are not available in records and proceedings before this court but at the same time it was necessary to make them available to cross examination by Shri Shetty. It should not be forgotten that Shri S.M. Shetty was in the post of a Group 'D' Peon and has alleged that he was forced to sign the statement on 23rd December, 2003. One may wonder why was he left alone and the Official Liquidator should have deputed one more senior person or a technical person to be present while delivery was being given to CBL. 21. In this present case also there is no explanation whatsoever for the delay of 8 years to even begin an enquiry. One may wonder why was he left alone and the Official Liquidator should have deputed one more senior person or a technical person to be present while delivery was being given to CBL. 21. In this present case also there is no explanation whatsoever for the delay of 8 years to even begin an enquiry. The counsel submitted that no prejudice was caused to Shri Shetty because in his statements dated 23rd December, 2003, 16th April, 2011 and letter dated 6th January, 2004 Shri Shetty has confessed that there was lapse on his part in discharging his duties and apologised. For the statement on 23rd December, 2003, the enquiry officer has called four persons who were present while the statement was recorded as witnesses. None of them was made available for cross examination by Shri Shetty. As regards the statement dated 16th April, 2011 Shri Shetty by his letter dated 18th April, 2011 has stated that his signature was taken under duress. Therefore, both these documents cannot be relied upon. The third document is a letter dated 6th January, 2004 which according to the counsel for the Official Liquidator can be relied upon to infer that Shri Shetty was guilty. 22 I find nothing in that letter dated 6th January, 2004 that requires an inference that Shri Shetty was not diligent in his work and requires to be removed from service. The letter reads as under :- “I submit that when I was deputed to Khandla in the matter of M/s. Otoklin Plants and Equipments Ltd. for delivery of leased machineries to Centurion Bank Limited through the Court Receiver, the representatives of Centurion Bank Limited, Court Receiver, the purchaser brought by Centurion Bank and their dismantling agent were present. During the delivery of machineries, on some occasions I have noticed that the representatives of Centurion Bank Limited trying to remove machineries not belonging to them and I have stopped the same. But it was not possible for me to identify the machineries after dismantling the same. The representative of the Centurion Bank Limited and Court Receiver alongwith their dismantling agent used to reach the premises much before my arrival and at some times they used to remain at the site even at night. Whenever I noticed that machineries other than the machineries belonging Centurion Bank are removed by them I objected and stopped. The representative of the Centurion Bank Limited and Court Receiver alongwith their dismantling agent used to reach the premises much before my arrival and at some times they used to remain at the site even at night. Whenever I noticed that machineries other than the machineries belonging Centurion Bank are removed by them I objected and stopped. When I informed them that I will report the matter to the Official Liquidator, if any machineries which are not belonging to them are removed, they threatened me that if I report such things to the Official Liquidator then they will put me liable for the same since I have also signed the delivery challans which were prepared by the representative of Centurion Bank, Mr. Mahesh Rane in his own handwriting. Since I have stopped and prevented them from lifting machineries other than of Centurion Bank Ltd., the machineries must have dismantled in my absence during early morning or in the night and after dismantling the machines it was not possible for me to identify the same as to the same belongs to Centurion Bank Ltd. or M/s. Al-Qahtani pipe coating terminal. Since there was no lock and seal at the premises the representatives of Centurion Bank Limited was able to enter the premises at any time. Further I never thought that the representatives of such a reputed bank will indulge in such heinous activities. In the above circumstances and with a belief that since I have stopped the representatives of Centurion Bank Limited from dismantling and lifting machineries other than the machineries belonging to them in my presence. I have not reported the matter to the Official Liquidator. I also recollect that at the time of sending the loaded truck on the basis of delivery challan of used to furnished a zerox copy of letter no.F.No.FTZ/Otoklin/Offence/15/95-96/2884 dated 2.7.2003 and on the said letter the Supdt. of P and I marked to P.O. who had to write verified the items loaded in the truck and signed the same on the letter itself. It is also stated that during my presence i.e., from 10.30 a.m. To 6.00 p.m. the Purchaser's Agent was dismantling machineries or parts belonging to Centurion Bank Ltd. I sincerely apologise for the same and request the Official Liquidator to pardon me for such a lapse.” 23. It is also stated that during my presence i.e., from 10.30 a.m. To 6.00 p.m. the Purchaser's Agent was dismantling machineries or parts belonging to Centurion Bank Ltd. I sincerely apologise for the same and request the Official Liquidator to pardon me for such a lapse.” 23. From the letter it appears that whenever Shri Shetty found that machineries other than CBL machineries were being removed, he objected and stopped them. The representative from the Court Receiver's office was also present and he was giving delivery to CBL's buyers. The role of Shri Shetty was only to sign the delivery challans which were also signed by customs officers. It appears that in his absence during early morning or in the night when he was not around, machineries were being dismantled and it was not possible to identify as to which belonged to CBL or which belonged to Al-Qahtani. Mr. Shetty has also stated that since he stopped the representatives of CBL from dismantling and lifting machineries other than the machineries belonging to CBL, he did not feel it necessary to report the matter to Official Liquidator. Mr. Shetty also stated that the customs officer were also their and verified the items loaded in the truck and they also signed the delivery challan. In the same breath Shri Shetty has stated that he apologises for the same. 24. When enquiry of Shri Saraiya was being conducted at that time Shri Shetty has stated when he asked for extra help to Official Liquidator and Deputy Official Liquidator it was refused as his job was only to sign delivery challans and the responsibility to see CBL machines were removed was that of the representative of the Court Receiver. There were security agents present, there were customs officers present. It was 50 acres plot and it was inside a custom bonded Free Trade Zone. None of these points which he has mentioned have been even dealt with by the enquiry officer in his report. The enquiry officer has not mentioned anything about Shri Shetty's stand. Therefore, the enquiry report cannot be accepted as it is. 25. Relying on this enquiry report, the Official Liquidator has filed a further report dated 31st October, 2011 read with report dated 18th February, 2013 stating that Shri Shetty has admitted that machinery was being illegally removed from place where he was deputed. Therefore, the enquiry report cannot be accepted as it is. 25. Relying on this enquiry report, the Official Liquidator has filed a further report dated 31st October, 2011 read with report dated 18th February, 2013 stating that Shri Shetty has admitted that machinery was being illegally removed from place where he was deputed. I do not find that he has admitted. Even assuming he has admitted and the enquiry report was correct, the Official Liquidator has not explained as to why the maximum punishment of termination has to be given to Shri Shetty. The enquiry officer has also stated he has considered the past record of the employee and there are no extenuating circumstances warranting any lenient view. This is nothing but a bald statement. He has not mentioned what should have been there if he had to take a lenient view. Has there been such an incident involving Shri Shetty before? Nothing is stated. In the scheme framed for the Company Paid Staff, the Official Liquidator has been authorised to take appropriate action against the Company Paid Staff guilty of dereliction of duty including termination of services. The Official Liquidator, therefore, had a duty to explain in detail as to why such maximum punishment has to be meted to Shri Shetty. Simply stating that the misconduct is so grave and of serious nature is not enough. Infact before recommending such a punishment, it was the duty of the Official Liquidator to examine whether the enquiry officer has taken into account the other statements of Shri Shetty, the FIR lodged and the other circumstances, in which he was working etc. Without going into these details he has simply recommended the harshest punishment - removal from service. 26. The enquiry officer and disciplinary authority, viz., the Official Liquidator have relied upon the alleged confession by Shri Shetty but they have not considered as to why in the FIR lodged on behalf of the Official Liquidator Shri Shetty is not even an accused. It is not even the case of the Official Liquidator that Shri Shetty connived with others to remove machineries not belonging to CBL or material that were in the custody of the Official Liquidator. There is not even an allegation. The report of the enquiry officer cannot be based on ipse-dixit or inferences. 27. It is not even the case of the Official Liquidator that Shri Shetty connived with others to remove machineries not belonging to CBL or material that were in the custody of the Official Liquidator. There is not even an allegation. The report of the enquiry officer cannot be based on ipse-dixit or inferences. 27. The power vested on the disciplinary authority is a discretionary power and courts will not interfere in the quantum of punishment but if it appears that the punishment being suggested is based on a report, which has not considered all facts and circumstances or it has relied on statement recorded by persons who the employee states have forced him to give that statement and those people who are not made available for cross examination when the punishment recommended is unreasonable, the courts generally interfere. The discretionary power has to be judicially exercised by giving cogent reasons. Suspension is a very drastic action and has very drastic consequences. Termination from service is worse. The Competent Authority while passing an order or recommending the punishment should keep in mind the adverse effect which its order may have on the rights, liberties or interest of persons keeping in mind the purpose for which the rules framed were intended to serve. The person not only gets less or no pay but goes through the ignominy of having to face all his colleagues, family and friends while under suspension and after termination. He is shamed. When applied to public functionaries to recommend a punishment, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. He has to discern between right and wrong; and therefore, whoever, hath power to act is bound by the rule of reason and law. It is to be not arbitrary, vague and fanciful but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself. The said recommendatory power has to be exercised fairly and bona-fide. 28. The suspension of an employee is injurious to his interest and must not be continued for an unreasonably long period. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself. The said recommendatory power has to be exercised fairly and bona-fide. 28. The suspension of an employee is injurious to his interest and must not be continued for an unreasonably long period. As no explanation whatsoever has been given for the unusual delay, infact there is not even an attempt to explain, it would be fair to make this assumption that the rights of Shri Shetty has been prejudiced due to unexplained delay. 29. The Apex Court in the judgment delivered as recently as on 16th December, 2015 in the matter of Prem Nath Bali vs. Registrar, High Court of Delhi and another5 in paragraphs 30 to 33 has stated as under :- “30) We are constrained to observe as to why the departmental proceeding, which involved only one charge and that too uncomplicated, have taken more than 9 years to conclude the departmental inquiry. No justification was forthcoming from the respondents’ side to explain the undue delay in completion of the departmental inquiry except to throw blame on the appellant's conduct which we feel, was not fully justified. 31) Time and again, this Court has emphasized that it is the duty of the employer to ensure that the departmental inquiry initiated against the delinquent employee is concluded within the shortest possible time by taking priority measures. In cases where the delinquent is placed under suspension during the pendency of such inquiry then it becomes all the more imperative for the employer to ensure that the inquiry is concluded in the shortest possible time to avoid any inconvenience, loss and prejudice to the rights of the delinquent employee. 32) As a matter of experience, we often notice that after completion of the inquiry, the issue involved therein does not come to an end because if the findings of the inquiry proceedings have gone against the delinquent employee, he invariably pursues the issue in Court to ventilate his grievance, which again consumes time for its final conclusion. 32) As a matter of experience, we often notice that after completion of the inquiry, the issue involved therein does not come to an end because if the findings of the inquiry proceedings have gone against the delinquent employee, he invariably pursues the issue in Court to ventilate his grievance, which again consumes time for its final conclusion. 33) Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavor to conclude the departmental inquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time frame then efforts should be made to conclude within reasonably extended period depending upon the cause and the nature of inquiry but not more than a year.” 30. Taking into account the totality of the facts and circumstances, I am of the view that the recommendation of the Official Liquidator in his further report dated 31st October, 2011 read with report dated 18th February, 2013 cannot be accepted. I find it difficult to even accept that Shetty could be faulted. At the same time this court by its order dated 16th January, 2006 declined the prayer of resumption of regular employment to Shri Shetty. Hence Shri Shetty should be given all benefits including increments and promotion that he would have obtained during the period after 16th January, 2006 had he not been under suspension. His salary/emoluments to be fixed/determined accordingly. 31. In the circumstances, I have no hesitation in setting aside the inquiry report dated 20th May, 2011 of Shri N. Chinnachamy. In the given situation, I may have directed the Official Liquidator to conduct a fresh enquiry or file a fresh report factoring in all the points mentioned above and conferring another opportunity of being heard to Shri S.M. Shetty. In the facts of this case, I do not think it is necessary to do so mainly in view of the fact that it is almost 12 years since the incident and it is almost 12 years since Shri Shetty has been under suspension. 32. In the facts of this case, I do not think it is necessary to do so mainly in view of the fact that it is almost 12 years since the incident and it is almost 12 years since Shri Shetty has been under suspension. 32. Since I am setting aside the enquiry report itself, the leave sought by the Official Liquidator in his further report dated 18th February, 2013 is declined. The suspension order of Shri S.M. Shetty is set aside. The Official Liquidator is directed to reinstate Shri S.M. Shetty in the same rank and position and pay as he would be with effect from 16th January, 2006, had he not been under suspension. Order accordingly. All OLR's are disposed accordingly.