Research › Search › Judgment

Gauhati High Court · body

2002 DIGILAW 355 (GAU)

Thaneswar Kalita v. State of Assam and Ors.

2002-08-22

B.B.DEB, P.P.NAOLEKAR

body2002
P.P. Naolekar, C.J.— Heard Mr. P.K. Roychoudhury, learned counsel for the appellant and the learned Govt. Advocate, Assam. None appears for the respondent Assam Seed Corporation Limited. 2. The appellant petitioner was appointed as a Junior Accountant in the year 1987 in the Assam Seed Corporation Ltd. On 1.9.93 the Managing Director of the Corporation issued a charge sheet under Rule 9 of the Assam Services(Discipline and Appeal) Rules, 1964(for short "the Rules, 1964") for alleged misappropriation of money and negligence of duties etc. while working as a Junior Accountant in Rangia Sales Point during the period from 15.10.91 to 15.2.92. The amount stated to be misappropriated was approximately Rs. 78,2447- and odd. The appellant petitioner was served with the charge sheet with the list of documents and also the list of witnesses. On 4.9.93 the appellant petitioner filed an application seeking inspection of the documents which have been shown in the list of documents supplied alongwith the charge sheet. The Enquiry Officer was appointed 16.10.93. On 4.11.94 the appellant petitioner again applied for inspection of the documents as he was not given inspection of the documents before that date. On 9.11.94 the appellant petitioner was placed under suspension which was later on revoked under the orders of the High Court wherein it was further directed to complete the enquiry within three months. On 14.8.97 one Prasanta Kumar Hazarika was appointed as Enquiry Officer and the appellant petitioner was directed to be present before the Enquiry Officer in connection with the enquiry on 17.11.97 and 18.11.97. As the appellant petitioner was neither supplied with nor inspection was given to him of the documents he again moved a fresh application on 19.11.97 for allowing him inspection of the documents mentioned in the list of documents. On 30.6.99 the Managing Director of the Corporation directed the appellant petitioner to avail opportunity to verify the requisite documents as prayed for by him with 10 days and submit his written statement within 21 days thereafter for a decision of 50% pay recovery against 2,70,504.20. On 2.7.99 an application was moved by the appellant petitioner that he may be given inspection of the documents as communicated to him by order dated 30.6.99. On 2.7.99 an application was moved by the appellant petitioner that he may be given inspection of the documents as communicated to him by order dated 30.6.99. On 13.7.99 the Managing Director of the Corporation directed the General Manager(Finance) to allow the appellant petitioner inspection of all the available documents wanted by him within 17.7.99 and the appellant petitioner was directed to submit reply within 31.7.99 after inspection of the documents. Again on 20.7.99 the Managing Director directed the Incharge, Rangia Sales Point to allow the appellant petitioner to inspect the documents for submitting reply to the charge sheet. On 22.7.99 the appellant petitioner was informed by the Incharge, Rangia Sales Point that the documents asked for are not available. On 6.8.99 the Managing Director directed the S.P. Chief Minister's Vigilance Cell, Christian Basti to allow the appellant petitioner to have the inspection of the documents for submission of his reply in the departmental proceedings. It appears that no inspection of the relevant documents have been given to the appellant till date. On 13.10.99 the impugned order was passed whereunder. It was directed to deduct 50% pay of the appellant petitioner from October'99 till the impugned misappropriated amount of Rs. 82,70,504.20 is recovered. By the same letter the appellant petitioner was directed to complete the inspection of the documents at Chief Minister's Vigilance Cell. The appellant petitioner again visited the Chief Minister's Vigilance Cell but the vigilance cell could not provide the relevant documents to the appellant petitioner and the appellant petitioner was forced to make another representation not to execute the order passed on 13; 10.99. As the recovery proceedings commenced against the appellant petitioner he challenged the order dated 13.10.99 by filling a writ petition and the learned Single Judge by order dated 13.3.2001 dismissed the writ petition. Aggrieved by the same the present appeal has been filed. 3. The petitioner's service conditions are governed by the Assam Services (Discipline and Appeal) Rules 1964 for the purpose of disciplinary proceedings and imposition of punishment. Rule 9 prescribes the procedure for imposition of penalty. Aggrieved by the same the present appeal has been filed. 3. The petitioner's service conditions are governed by the Assam Services (Discipline and Appeal) Rules 1964 for the purpose of disciplinary proceedings and imposition of punishment. Rule 9 prescribes the procedure for imposition of penalty. Sub Rule(3) of Rule 9 reads as under: "9(3) The Government servant shall, for the purpose of preparing his defence, be permitted to inspect and take extracts from such official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the Disciplinary Authority such records are not relevant for the purpose or it is against the public interest to allow him access thereto." 4. It is clear from Sub Rule (3) of Rule 9 that whenever there is a departmental enquiry an officer he shall be given an inspection of the relevant documents and take extracts from such official records for the purpose of preparing his defence. Such permission can be refused if for a reason to be recorded in writing in the opinion of the disciplinary authority such records are not relevant for the purpose and or it is against public interest to allow him access thereto. We do not find that any order was issued by the disciplinary authority that the documents sought for by the appellant petitioner are not relevant for the purpose of the enquiry of that giving inspection of the same would be against the public interest. Sub Rule 3 of Rule 9 gives a valuable right to an officer who is facing a departmental enquiry to inspect the documents which are relevant for preparation of his defence against the charge framed. Rule 7 provides the nature of penalties and Rule 7(iii) provides for recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders to the Government of Assam or the Central Government or any other State Government or any local or other authority to whom services of a Government servant had been lent. Under Sub Rule (1) of Rule 9 it is provided that no order imposing on a Government Servant any of the penalties specified in Rule 7 shall be passed except after an inquiry in the manner provided under Rule 9. Under Sub Rule (1) of Rule 9 it is provided that no order imposing on a Government Servant any of the penalties specified in Rule 7 shall be passed except after an inquiry in the manner provided under Rule 9. We have already quoted Sub Rule (3) of Rule 9 and thus before imposition of the penalty which has been imposed on the appellant petitioner the enquiry is to be conducted as provided under Rule 9 of the Rules of 1964. The facts clearly reveal that inspite of appellant petitioner's repeated demand for supply of the documents or giving him inspection thereof the disciplinary authority failed to give inspection of the documents to the appellant petitioner. The documents, which have been sought for by the appellant petitioner, are the documents mentioned in the list of documents supplied along with the charge sheet and the Enquiry Officer while giving his enquiry report relied upon those documents. These facts clearly indicate that the documents are important and relevant for the purpose of preparing defence by the appellant, which have neither been supplied nor inspection of the same was given to the appellant petitioner. That is a clear cut breach of Sub Rule (3) of Rule 9 while conducting the enquiry and imposing the punishment on the appellant petitioner. Failure to give inspection of the documents relevant for the purpose of enquiry would certainly amount to cause prejudice to the appellant. This fact has not been taken into consideration by the learned Single Judge while dismissing the writ petition of the appellant petitioner on the ground that no prejudice has been cause to the appellant/petitioner. Noncompliance of the Rule prescribed for conducting departmental enquiry itself is a prejudice caused to the appellant. It is apparent that the documents sought by the appellant petitioner are relevant as they have been relied upon while imposing the punishment on the appellant. 5. For the reasons aforesaid the order imposing punishment dated 13.10.99 is quashed. The judgment and order of the learned Single Judge dated 13.3.2001 is set aside and the appeal is allowed. The amount recovered, if any, by the respondent No. 2. In pursuance of the order dated 13.10.99 shall be refunded to the appellant petitioner. However, as the respondent Corporation has not been represented before this court we do not impose any cost.