Research › Search › Judgment

Gauhati High Court · body

2000 DIGILAW 121 (GAU)

Dinesh Chandra Ray v. State of Assam

2000-03-16

P.C.PHUKAN

body2000
I have heard Mr. BK Sharma, learned counsel for the writ petitioner, as well as Mr. Das, learned Govt Advocate appearing for the State-respondents. I have also perused the records of the case. 2. By this application under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the order dated 28.4.90 passed by the Deputy Commissioner, Kokrajhar dismissing him from service and also the order dated 24.7.91 passed by the Commissioner, Lower Assam Division vide Memo No. PAP.4/90/57 and also the order dated 28.10.91 passed by the Assam Administrative Tribunal rejecting the petitioner's appeal petition. 3. Petitioner's case in brief is that he was appointed as a Process Server in the Gosaigaon Tehsil Office in the Kokrajhar District wef 27.7.67. He was placed under suspension by the SDO (C), Kokrajhar by order dated 14.7.82 with immediate effect. He was also served with a show cause notice dated 20.3.84 by the Deputy Commissioner, Kokrajhar. Charges were framed against him issuing the statements of allegations and he was called upon to submit his written statement of defence within 10 days from the date of receipt of the show cause notice. The aforesaid show cause notice initiating departmental proceedings against him was issued after 20 months and 4 days of his suspension. The charges levelled against him were: (i) Misappropriation of Govt money, (ii) causing disappearance of CFR Book No. 679 with a view to escaping the guilt of receiving the amounts involved. 4. Petitioner submitted a written statement of defence denying the charges framed against him. An Inquiry Officer was appointed to inquire into the charges. In the departmental proceeding, witnesses in support of the charges were examined though in the show cause notice (Annexure B) served on him, no witnesses were cited. On conclusion of the disciplinary proceedings, the Deputy Commissioner passed the impugned order dated 28.4.90 dismissing the petitioner from service. The Commissioner, Lower Assam Division (appellate authority) dismissed his appeal by order dated 24.7.91. The petitioner then approached the Assam Administrative Tribunal in Appeal Case No. 1459 ATA/91; but the learned Tribunal vide its judgment and order dated 28.10.91 rejected the appeal petition, and hence this writ petition before this Court. 5. The Commissioner, Lower Assam Division (appellate authority) dismissed his appeal by order dated 24.7.91. The petitioner then approached the Assam Administrative Tribunal in Appeal Case No. 1459 ATA/91; but the learned Tribunal vide its judgment and order dated 28.10.91 rejected the appeal petition, and hence this writ petition before this Court. 5. It is contended that the disciplinary proceedings was conducted in violation of the mandatory provisions laid down in Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 inasmuch as, the list of documents relied upon by the disciplinary authority and the list of witnesses were not furnished to the petitioner. Rule 9 (2) reads as under : “(2) The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges together with a statement of the allegations on which they are based, shall be communicated in writing to the Govt servant, and he shall be required to submit, within such time as may be specified by the Disciplinary Authority, a written statement of his defence and also to state whether he desires to be heard in person. At the time of delivering the charges, the Disciplinary Authority shall invariably furnish to die Govt servant a list of documents and witnesses by which each article of charges is proposed to be sustained.” (emphasis supplied). 6. Mr. BK Sharma, learned counsel for the petitioner submits that in the instant case, admittedly, the requirement under the above Rule to furnish the list of documents and the list of witnesses were not complied with and, as such, disciplinary proceedings were conducted in violation of requirement of the said Rule, and hence cannot be allowed to stand. In support of his contention, Mr. Sharma has referred to the decisions of the Single Bench of this Court in Civil Rule No. 577 of 1990 and of the Division Bench decision of this Court in Writ Appeal Nos. 162,164 and 165 of 1994. confirming the decision of the Single Bench in Civil Rule No. 577 of 1990. 7. Mr. Das, the learned Govt Advocate, however, contends that in case of procedural provision which is not of substantial or mandatory character, if no prejudice is cause to the person proceeded against, no interference of Court is called for. 162,164 and 165 of 1994. confirming the decision of the Single Bench in Civil Rule No. 577 of 1990. 7. Mr. Das, the learned Govt Advocate, however, contends that in case of procedural provision which is not of substantial or mandatory character, if no prejudice is cause to the person proceeded against, no interference of Court is called for. Even in case of mandatory procedural provision, if it is in the interest of the person proceeded against and not in the public interest and if such person waived the requirement thereof, then also non-compliance of such requirement would not vitiate the action taken. Mr. Das has relied upon the decision in State Bank of Patiala & others vs. SK Sharma reported in (1996) 3 SCC 364 . In reply Mr. Sharma, learned counsel for the petitioner submits that this case is distinguishable and that the State-respondents did not prefer any appeal against the aforesaid Division Bench judgment of this Court holding that non-compliance of the requirement to furnish the list of documents and the list of witnesses vitiates the entire disciplinary proceedings. Mr. Sharma farther submits that non-compliance of the statutory requirement under Rule 9 (2) of the Assam Service (Discipline and Appeal) Rules, 1964 did cause prejudice to the petitioner. In paragraph 16.4 of the writ petition, it is stated that the lists of documents and of witnesses were not furnished to the petitioner and thereby violated the mandatory and statutory rules. As a result, in the instant case, the departmental proceedings initiated against him is void ab initio and is liable to be set aside. In paragraph 16.5 of the writ petition it is further contended that due to non-compliance by the authority of those mandatory requirements, the petitioner could not exercise the right vested on him by Rule 9 (3) in the matter of inspection and taking copies of the relevant documents for the purpose of his defence including the written statement of defence. This deprivation of the petitioner of his vital right made the departmental proceeding against him bad in law and liable to be set aside. The State respondents did not file any affidavit-in-opposition and hence, the averments made in the writ petition which have not been controverted by filing affidavit-in-opposition shall have to be taken as admitted. 8. This deprivation of the petitioner of his vital right made the departmental proceeding against him bad in law and liable to be set aside. The State respondents did not file any affidavit-in-opposition and hence, the averments made in the writ petition which have not been controverted by filing affidavit-in-opposition shall have to be taken as admitted. 8. Having heard the learned counsel for the parties and after going through the records of the case, I am of the opinion that the failure of the authority to comply with the requirement to furnish the list of documents and the list of witnesses to the petitioner did cause prejudice to the petitioner in his defence and vitiates the disciplinary proceedings against him. 9. In view of the above, the Deputy Commissioner's order dated 28.4.90 dismissing the petitioner from service, the order of the Commissioner, Lower Assam Division dated 24.7.91 dismissing the petitioner's appeal and also the order dated 28.10.91 passed by the Assam Administrative Tribunal rejecting the petitioner's appeal petition are hereby set aside. 10. The State-respondents are hereby directed to reinstate the petitioner in service forthwith. However, the State-respondents may, if so advised, initiate disciplinary proceedings against the petitioner afresh and dispose of the same in accordance with the relevant rules. 11. In view of the setting aside of the above mentioned orders, the petitioner shall be deemed to have been in service if .he has not retired in the meantime. This civil rule stands accordingly disposed of. In the facts and circumstances, the parties are left to bear their own costs