S. HAQUE, J.
1. By this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the Signal No. R.329 dt. March 22, 1988 of the Officer of the Director General, Border Security Force, New Delhi requiring attachment of the petitioner to the office of the Deputy Inspector General, Border Security Force, Shillong, and the proceedings of the enquiry in connection with the loss of a Tape-Recorder.
2. The petitioner is an Additional Deputy Inspector General of Police at the Border Security Force, Headquarter (Manipur & Nagaland Sector) at Imphal, Manipur. He joined Indian Army in 1963 and then joined the Border Security Force as Asstt. Commandant in 1967; promoted to the rank of Commandant in 1975 and to the rank of Commandant (Selection Grade) with effect from February 22, 1981. He was promoted to the rank of Addl. Deputy Inspector General of Border Security Force with effect from October 26, 1986. He has service at his credit and prospects of further promotions in future are open.
3. In 1974 when the petitioner was posted as Commandant of 82nd Battalion, there was an enquiry against him in respect of loss of a Tape-Recorder. The enquiries of the proceeding had been closed in the year 1977. The enquiry was held at 3 (three) stages. The first was conducted by Shri Venugopal, the Asstt. Commandant 82nd Battalion, B.S.F. in the month of December, 1975, the second enquiry was conducted by Shri Beant Singh, Commandant of 80th Battalion, B.S.F.; both these enquiries remained unconcluded. Then a Court of Enquiry comprising (1) Shri J.N. Pradhan, Commandant 86th Battalion, B.S.F, (2) Shri ML. Jairath, Deputy Commandant, 80th Battalion, B.S.F. and (3) Shri Ambica Tiwari, Deputy Commandant, 82nd Battalion B.S.F. was constituted and they conducted the enquiry for the same subject-matter from September 11, 1976 to October 29, 1976. It was expected and presumed that their findings in the proceeding with the record of the case must have been submitted in the beginning of 1977. But the petitioner was neither communicated with the finding of the Enquiry nor with the opinion of the Deputy Inspector General, Border Security Force. But surprisingly after about 11 or 12 years, present decision of resumption of the enquiry has been taken up and by the impugned Signal the petitioner has been directed to be attached to Shillong for completion of the disciplinary case against him.
4. Affidavit-in-opposition has been filed by the respondent No. 3, Inspector General of B.S.F,, Assam, Meghalaya, Manipur, Nagaland Frontier with Headquarter at Shillong on behalf of all the respondents. Admitted fact was that the two first enquiries for the loss of the Tape-Recorder against the petitioner remained unconcluded and that the Court of Enquiry constituted with the 3 Officers had recorded evidence in the investigation and did conclude it in 1977. It is stated that the record of the proceeding of the Court of Enquiry with its finding and opinion were missing in the B.S.F. Hqrs, Shillong and that in December, 1987 the 82nd Battalion had moved from this frontier to Rajasthan and Gujarat, so no further queries were made by this Frontier with respect to the subject-matter (case) as the Battalion stopped submitting monthly return to this Frontier. But after the query was received by respondent No. 3 vide letter No. C. 14011/86/CC/Pers./BSF/1441 dt. 16/18th December, 1986 asking respondent No. 3 if any case against the petitioner with regard to loss of Tape-Recorder was pending; and that respondent No. 3 had intimated about the holding of the said Court of Enquiry in 1976-77. It is also stated that on December 14, 1987, vide message No. G-2602 dt. December 11, 1987 BSF. Hqr. asked for duplicate of the Court of Enquiry held by the Frontier respondent No. 3 which was duly ; sent on December 14, 1987, and that thereafter, this Frontier received back the duplicate copy of the Court of Enquiry proceeding vide letter dt. February 5, 1988 and accordingly attachment order was issued by the respondent No. 1 vide the impugned Signal. It is further stated in para 8 of the affidavit- in-opposition that the finding of the Court of Enquiry is nothing but derivation of actual fact by the Enquiry agency and its opinion is not an expert opinion and, therefore, the finding and opinion are inadmissible in any court of law or even before the Officer to conduct Record of Evidence, if ordered, and that it was for such reason the copy of the findings and opinion of the Court of Enquiry were not supplied to the petitioner. It is also stated that the petitioner's writ petition is prematured and that he would get enough opportunity to cross-examine the prosecution witness and to produce his defence in case a record of evidence is ordered against him after his hearing by the Deputy Inspector General, BSF, Shilliong,
5. Mr. Priyananda Singh, counsel for the petitioner, submits that the results, finding and opinion of the Court of Enquiry held in 1977 were kept concealed without intimating the petitioner for so many years, although he was entitled to know the results and that it was not fair under the law to resume the proceeding for completion after about 11 or 12 years. It was submitted thatSection 30 of the B.S.F. Act was not attracted as the said Tape-Recorder was an unclaimed property and the BSF authority had no jurisdiction to investigate for a proceeding against the petitioner. He further submits that investigation and proceeding for such a long period have been discouraged by the Supreme Court as well as by the Confidential Circular of the Director General, BSF, Govt. of India, MHA, New Delhi dt. December 31, 1981. He refers the decisions reported in, (AIR) 1987 SC 2257 paras 15 and 22 and also Administrative Tribunal Cases, 1987 (3) 629 paras 8 and 11 in support of his submissions.
6. Learned Addl. Senior Central Govt. Standing Counsel Mr. S.N. Chetia submits that the previous enquiries including the Court of Enquiry in 1976-77 were mere investigation of the commission of an offence and the petitioner was not entitled to know the result of such investigation; but when in 1987, after scrutinising the relevant correspondence and records pertaining to loss of Tape-Recorders the respondent No. 1 directed respondent No. 3 to proceed with the investigation proceedings as required under BSF Rules 45 and so the attachment order was issued. It is submitted that lapse of time would not absolve the petitioner from facing the proceeding and the charge and that the delay was beyond the control of the respondent No. 1 because the previsous enquiry/investigation including that of the Court of Enquiry were missing. Mr. Chetia has referred toSection 2(q),30,77 and Rule 6 of the BSF Act and Rules.
7. Offence under Section 2(q) means any act or omission punishable under the BFA Act and includes a civil offence. Offences in respect of property committed by any person subject to BSF Act are punishable under.Section 30 and these include (a) theft, (b) dishonest misappropriation, (c) criminal breach of trust, (d) dishonestly receiving or retaining property in respect of which (a) or (b) (c) has been committed, (e) wilfully destroy or injure property of the Government entrusted to him and (f) act done with intent to defraud or to cause wrongful gain to one or wrongful loss to another. In respect of the offences under (a), (b), (c) and (d) the property or subject-matter must belong to the Government, or to any Forceman, band or institution or to any BSF person. In respect of offence under (e) the property must belong to the Government entrusted to him.
8. The investigation or enquiry at three stages during 1975-77 including Court of Enquiry was in respect of a loss of Tape-recorder, which neither belonged to the Government, nor to any Forceman, band or institution, nor to any person of the Force; nor there was any act in respect of such property with intent to cause wrongful gain to one and wrongful loss to another.
9. Statements of two witnesses recorded by the Court of Enquiry in 1976-77 are quoted under para 10 (a) (b) of the writ petition and those have not been controverted by the respondent in their affidavit- in-opposition.
10. The witness No. 4. No. 718330093 ASI/ LDC Radheshyam Mandal stated 'I do not know about the second Tape Recorder regarding its source of purchase and funds untilised for the purpose of the Tape Recorder. The Body number of the Tape Recorder purchased out of Welfare Fund is 3299. The cost of the Tape Recorder i.e. Rs. 850/- (eight hundred fifty) was met out of Welfare Grant'.
11. Witness No. 12 S.K. Khurana, Quater Master of the Battalion at the relevant time stated:- 'I also state from the records available in the Accounts Branch of 82 BN B.S.F. that Sharp Recorder Body No. 3299 was purchase out of BN Welfare Fund whereas there are no records availabe regarding purchase of Sharp Cassette Recorder Body No. 2233. (ii) From my knowledge on the subject I can deduce that this Tape Recorder was held off the records of the officer and it was surplus. To the best of my knowledge now it was no a Government property. Sharp Recorder Body No. 3299 was purchased out of BN Welfare Fund whereas there are no records available regarding purchase of Sharp Cassette Recorder Body No. 2233'.
12. The subject-mater of the enquiry in the previous proceedings as found from the record and stated in the writ petition (Para 10) runs as follows:-
'Inquiry into the circumstances under which Tape Recorder No. 2233 of 82nd Battalion B.S.F, is missing and to pin point the responsibility'. It did not disclose that the Tape Recorder belonged to any of the institution or body of the B.S.F. to attract the provisions of B.S.F. Act. The statements of the two witnesses before the Court of Inquiry as quoted above also clearly established that there was no material/record to show that the Tape Recorder No. 2233 belonged to the B.S.F or to any institution or body of the Force. How the enquiry officer, on those material, could come to the finding that the Tape Recorder belonged to any of them fixing responsibility on petitioner to face proceeding after 12 years of such a finding. The Tape Recorder was not Government property nor (belonged) to any institution or body of the B.S.F.; it was an unclaimed property and unaccounted for, therefore, it did not come in the purview of Section 30 of B.S.F. Act to give the B.S.F. Authority jurisdiction for any investigation, enquiry or proceedings against the petitioner. All enquiries and investigation held in 1975-77 were without jurisdiction. And after a silence of 12 years a process for completion of disciplinary case cannot be allowed to proceed. The petitioner has equal rights, liberties and provisions under Articles 20, 21 of the Constitution of India.
13. It has been strictly emphasized in the Confidential Circular BSF, Government of India, New Delhi to review the working of the BSF and Rules specially in the context of expeditious disposal of disciplinary proceedings and therein it was clearly indicated that the main aim of the BSF Act and Rules is to ensure expeditious and not vexatious disposal of disciplinary proceedings.
14. The Supreme Court held in series of cases that delay and dragging enquiry and departmental proceeding not only enforce harassment to the employees, but loses the very spirit and purpose of the enquiry/proceeding and as such dragging process should not be encouraged to the detriment of the employees concerned. It was again reiterated by the Supreme Court in the case G. Ramachandran v. Senior Supdt. of Post Offices, Madurai reported in (1987) 3 Administrative Tribunal Cases 629, that delay in the conduct of the enquiry will certainly be unjust to the employee, for, apart from mental strain to which he will be subject, it will entail forfeiture of legitimate benefits in service that would have been available to him but for the pendency of the proceeding, and even result in infringment of the salutory principle of equity of opportunity, one of the fundamental rights enshrined in the Constitution. Where the delay is purely on account of the inaction on the part of the disciplinary authority, and such delay is inordinate, unreasonable and unaccountable, so as to amount to an abuse of the power vested in the disciplinary authority, its impact can well be held to be fatal to the proceedings. Again in another recent case O.P. Gupta v. Union of India reported in (1988-I-LLJ-453), it was held that the public interest in maintaining the efficiency of the service requires that Civil servants should not be unfairly dealt with; the authority must view with concern that a departmental enquiry against Government servant should not be kept alive for long years without lawful justification; and that the course of long delay not only demoralises the services but virtually ruins the career of the delinquent officer as a Government servant apart from subjecting him to untold hardship and humuliation. It was emphasized that the authority in future would ensure that enquiry and departmental proceedings are concluded with reasonable diligence and not allowed to be protracted unnecessarily.
15. The insant enquiry began in 1975-77 and the authority of BSF was sleeping for long 12 years and suddenly decided to complete the disciplinary case by issuing attachment order on the petitioner. The delay was purely on account of the inaction on the part of the disciplinary authority, and such delay was inordinate, unreasonable and unaccounted for, and if the proceeding is allowed to be resumed then it would be an abuse of the power and porcess of the provisions of the BSF Act and Rules.
16. Learned Central Government Standing Counsel by referring to Section 77 and Rule 6 submits that action can be taken against a person of the Force for commission of an offence under the Act even within 6(six) months after he had ceased to be subject to the BSF Act. Also submitted that the authority can lawfully take action with regard to any other matter not specifically provided for in the rules. We find no force in the submission because law and equiry demand that all actions for the commission of offence must be taken within reasonable time avoiding delay so that there appears to be no abuse of the process of law and power. The loss of an unclaimed Tape Recorder was not a matter of the nature to pursue by adopting a procedure not provided for and to linger it for years together.
17. In the meantime, the petitioner for his meritorious services, efficiencies and sincerely got promotions to the rank of Commandant (Non-selection Grade) and again to the Commandant (Selection Grade) in 1981 and 1986 to the rank of Addl. Deputy Inspector General, BSF. Will it be just and lawful to pursue the enquiry began in 1975 after lapse of 12 years?
18. In the conclusion, we hold that the enquiry and proceeding earlier held in 1975-77 were without jurisdiction and the alleged offence was not within the purview ofSection 30 of BSF Act; that lingering the enquiries and proceeding for so many years and the decision to complete disciplinary case after a lapse of 12 years are unjust and imporper.
19. In the result, this writ petition is allowed. All enquiry and proceedings beginning from 1975 including the Court of Enquiry and the decision taken by the respondent No. 1 for completion of the disciplinary case and order of attachment of the petitioner for such aim under the Signal No. 3269 dt. March 22, 1988 (Annexure-A/1) are quashed. The respondents arc prohibited to reopen the subject-matter in future.
20. The rule is made absolute.
21. We make no order as to costs.
Per Y.I. SINGH, J.: I agree.