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Gauhati High Court · body

2001 DIGILAW 156 (GAU)

Nanda Nath Gam v. State of Assam and Ors.

2001-05-31

AFTAB H.SAIKIA

body2001
Heard Mr. BP Kataki, the learned senior counsel assisted by Mr. B. Buragohain learned counsel for the petitioner as well as Mr. B. Choudhury, learned Additional Senior Govt Advocate, Assam on behalf of respondents 1, 2 and 3 and Mr. T. Chutia, learned counsel on behalf of respondent No.4. 2. Despite adequate notice, no affidavit-in-opposition has been filed on behalf of the State-respondents. The matter has been pending in this Court from 1997 but nothing has been brought on record on the part of the State Govt to counter or deny the contentions advanced on behalf of the petitioner and as such, in view of the settled principles of law the averments made by the petitioner are deemed d to be accepted by the State-respondents. 3. Today at the time of hearing, the record has been produced by the learned Govt counsel. 4. The case of the petitioner in short is that while he was serving as I/C Deputy Inspector of Schools, Lakhimpur Sub Division, the petitioner was placed under suspension on 20.2.96 with immediate effect for some illegal appointment of Assistant Teachers in LP School by misusing official power for his personal gain. Immediately, the Commissioner and Secretary to the Govt of Assam, Education Department initiated disciplinary proceeding against him by issuing show cause on 27.3.96 under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964, herein after referred to as Rules, read with Article 311 of the Constitution of India levelling as many as three charges against the petitioner. 5. After holding enquiry, the Enquiry Officer so appointed for such purpose, submitted his enquiry report on 24.9.96 to the disciplinary authority with the finding that the petitioner issued many illegal appointments but it was difficult to ascertain the exact numbers of them which only can be ascertained from schools to schools verification. It was further observed that many of the charges failed due to careless frame of charge and department may like to frame charges de novo. The copy of the enquiry report is annexed as Annexure G/l to the writ petition. 6. It was further observed that many of the charges failed due to careless frame of charge and department may like to frame charges de novo. The copy of the enquiry report is annexed as Annexure G/l to the writ petition. 6. On the basis of the said enquiry report, the disciplinary authority, the Commissioner and Secretary to the Govt of Assam, Education Department, Dispur by impugned notification dated 21.8.97 dismissed the petitioner from service holding that all the charges levelled against the petitioner have been substantiated on examination of the charges levelled against the petitioner, the written statement and defence as well as report of the Enquiry Officer. 7. 1 have perused the record as produced before me as well as the pleadings of the parties including the enquiry report dated 24.9.96 and the impugned order of dismissal dated 21.8.97. 8. Shockingly on perusal of the enquiry report as well as the impugned order of dismissal, I have found that the impugned order of dismissal depicts a different story which was never reflected on the face of the enquiry report. A mere reading of the enquiry report would go to show that the charge No. 1 was not proved, charge No.2 was sustainable with slight modification whereas as per enquiry report it , requires field level enquiry to ascertain the charge No.3. That being the position, I am surprised how in passing the impugned order, the disciplinary authority can say that all the charges levelled against the delinquent officer have been substantiated. 9. Mr. Kataki, learned senior counsel for the petitioner states that the impugned order of dismissal cannot be accepted on three grounds firstly, the disciplinary authority while passing the impugned order of dismissal totally failed to apply his mind to the enquiry report as evident on the face of it, secondly, the enquiry was held in total violation of the provisions of Rule 9 (6) of Rules due to non-examination of any witness and thirdly, the impugned action of dismissal cannot be sustained for non supply of the copy of the enquiry report and denial of which resulted in violation of Articles 14,21 and 311 (2) of the Constitution of India. 10. In support of his first contention, Mr. 10. In support of his first contention, Mr. Kataki, learned senior counsel for the petitioner has taken me to a decision of this Court in Bodrul Huda Ahmed vs. State of Assam, reported in AIR 1971 Assam & Nagaland 521. In the said case, this Court dealing with a case of similar nature, from the enquiry report, at para 5 and 7, found as follows : "From the report of inquiry (Annexure XVII to the petition) it is found that the Inquiry Officer held the charges Nos 1,2, 4 and 5 as proved. Charge No.3 was dropped by the Inquiry Officer. Regarding Charge No.4 the Inquiry Officer observed that a lenient view might be taken of the lapse of the petitioner as he had brought the negligence of the assistant to the notice of the higher officer. Regarding Charge No.5 the Inquiry Officer observed that the delay was only for one day and therefore a lenient view might be taken. It is also apparent on the face of the removal order that the disciplinary authority found all the charges framed against the petitioner as proved. But as observed earlier, Charge No.3 was dropped by the Inquiry Officer in his report without any authority and it is not understood how the disciplinary authority could hold that all the charges drawn against the petitioner had been proved." 11. On observing the same, this Court in the above case held that disciplinary authority failed to apply its mind to the report and record of the enquiry and thus failed to follow the relevant Rules before inflicting the punishment to the prejudice to the petitioner. It was further held that the disciplinary authority failed to act justly and fairly but acted capriciously for which the impugned order of removal of the petitioners was quashed. 12. Challenging the impugned order dated 21.8.97, the learned counsel for the petitioner submits that ex-facie the same is absolutely perverse and illegal inasmuch as when Inquiry Officer did not find the petitioner specifically guilty of the charges, the disciplinary authority held that all the charges levelled against the petitioner have been substantiated and the same is also hit by sub-clause (9) of Rule 9 which runs as follows : "Rule 9. (9). The Disciplinary Authority shall, if it is not the Inquiry Authority, consider the record of the inquiry and record its findings on each charge." 13. (9). The Disciplinary Authority shall, if it is not the Inquiry Authority, consider the record of the inquiry and record its findings on each charge." 13. Having regard to the Bodrul Hilda's case (supra), I find force in the submissions of the learned senior counsel appearing for the petitioner for acceptance of the same. Accordingly, it may be safely held that in view of the decision cited above, the impugned order of dismissal suffers from perversity and illegality. 14. Referring to the second contention, learned senior counsel for the petitioner questions the legality and validity of the inquiry report dated 24.9.96 and contends that the enquiry itself was in total violation of sub-clause (6) of the c Rule 9 of the Rules. Rule 9 (6) reads as follows : "9. (6) The Inquiring Authority shall, in the course of the inquiry consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The Govt servant shall be entitled to cross examine witnesses examined in support of the charges and to give evidence in person, and to adduce documentary and oral evidence in his defence. The person presenting the case in support the charges shall be entitled to cross-examine the Government servant and the witnesses examined in his defence. If the Inquiring Authority declines to examine any witnesses or to admit any document in evidence on the ground that his evidence or such document is not relevant or material, if shall record its reasons in writing. Explanation : If in the opinion of the Inquiring Authority the proceedings of the enquiry establish any article of charge different from the original article of the charge it may record its findings on such article of charge : Provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has a reasonable opportunity of defending himself against such article of charge." 15. A bare perusal of the Rules shows that the Inquiring Authority is required to take such oral evidence as may be relevant and materials to prove the charges. Thereafter, the delinquent officer shall be entitled to cross examine the witnesses so examined. A bare perusal of the Rules shows that the Inquiring Authority is required to take such oral evidence as may be relevant and materials to prove the charges. Thereafter, the delinquent officer shall be entitled to cross examine the witnesses so examined. But in the instant case, the Inquiry Officer did not examine any witnesses to the detriment of the interest of the petitioner, as a result of which, petitioner was deprived of his entitlement to cross examine the witnesses in his defence. 16. As regards the non-examination of the witnesses, another decision has been relied on by the petitioner's counsel i.e. AIR 1971 Assam & Nagaland 281 (Pabitra Ranjan Guha vs. Collector of Customs and Central Excise, Shillong & others). The Division Bench of this Court ruled that in a departmental enquiry the charges must first be established by legal evidence by the department and then the delinquent officer may be asked to explain the evidence against him. If the charges are not established by legal evidence and yet delinquent officer is asked to prove his innocence that will be against the principles of natural justice and fair play. In the instant case, it is manifestly clear that no witnesses were examined and that score alone, this departmental proceeding a can be said to be illegal. 17. In addition to the contentions above mentioned, learned counsel for the petitioner also urges that it is a duty cast on the Inquiring Officer to give clear finding on definite charges so framed by the disciplinary authority as required under sub-clause (2) of the Rule 9. On the face of the records, it appears that the Inquiry Officer instead of giving the clear finding, mentioned that the charges are sustainable with slight modification which is not permissible under the law. 18. Advancing the third contention, Mr. Kataki, learned senior counsel submits that since the Inquiry Officer was not the disciplinary authority, in the instant case, the petitioner has a right to receive a copy of the enquiry report of the Inquiring Officer before disciplinary authority arrived at its conclusion regarding c the guilt or innocence of the petitioner relating to the charges levelled against him. In the case in hand, the petitioner was denied the said enquiry report and as such, denial of such report resulted in violation of principles, of natural justice. In the case in hand, the petitioner was denied the said enquiry report and as such, denial of such report resulted in violation of principles, of natural justice. Learned senior counsel has drawn attention of this Court to a decision of the Apex Court in Managing Director, ECIL vs. B. Karunakar reported in (1993) 4 SCC , 727. In this case, the Apex Court affirming the decision of Union of India vs. Mohd Ramjan Khan, (1991) 1 SCC 588 , at paragraph 29 held as under : "29. Hence it has to be held that when the Enquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the Enquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Enquiry Officer's report before the disciplinary authority takes its decision on the charges, is a denial reasonable opportunity to the employees to prove his innocence and is a breach of the principles of natural justice." 19. Upon hearing the submissions on behalf of the petitioner, I am fully impressed with those and unhesitatingly hold that both the impugned orders of dismissal and the enquiry report along with the inquiry itself are vitiated and in violation of the provision of the Rules as well as principles of natural justice. As already discussed herein above, when the Inquiry Officer instead of arriving at a clear finding on the charges, suggested the department to frame charges de-novo disciplinary authority ought to have acted in terms of the inquiry report. It is accepted principle of service jurisprudence that if the disciplinary authority is not willing to accept the inquiry report he ought to have given his own reasons for such non-acceptance of the inquiry report as required under the Rules. In the instant case, the disciplinary authority took a different view against the suggestion of the Inquiry Officer. On the other hand, I would also like, to point out herein that it is the duty of the Inquiry Officer to find out whether the charges are proved against the delinquent officer or not. In the instant case, the disciplinary authority took a different view against the suggestion of the Inquiry Officer. On the other hand, I would also like, to point out herein that it is the duty of the Inquiry Officer to find out whether the charges are proved against the delinquent officer or not. But the Inquiry Officer has no jurisdiction to supplement or modify the charges framed by the disciplinary authority. What transpires in this case is that the Inquiry Officer has modified the charge No.2 which is not permissible under the law. 20. 1 have also perused the records made available by the learned Govt counsel and I do not find any such materials therein that can improve the case of the State-respondents. 21. That being the position, on perusal of the materials available on record and upon hearing the learned counsel for the parties, feel inclined to interfere with the impugned order of dismissal dated 21.8.97 and accordingly the same is set aside and quashed. It is directed that the petitioner be reinstated forthwith and period of dismissal shall be treated on duty. 22. It is made clear that the petitioner shall be entitled to his regular salaries and allowances from the date of dismissal, if otherwise, he has not been engaged in any employment whatsoever during the period of dismissal. It is needless to say that the competent authority shall be at liberty to proceed with any departmental proceeding afresh if so advised. In the result, writ petition is allowed. However, parties are to bear their own costs.