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2005 DIGILAW 490 (GAU)

Subrata Talukdar v. State of Assam

2005-06-27

R.B.MISRA

body2005
JUDGMENT R.B. Misra, J. 1. Heard Mr. K. Paul, learned Counsel for the Petitioner and Mr. K.C. Mahanta, learned Addl. Sr. Govt. Advocate on behalf of Respondent Nos. 1, 2 and 3. Despite notice none appears for Respondent Nos. 4 and 5. However, as per office report these Respondents are duly served. 2. In this petition prayer has been made to quash the order dated 8.6.2000 (Annexure 'J' to the writ petition) passed by the Secretary, Laharighat, Samabai Samiti Ltd. (in short the Samity), whereby in reference to the Resolution No. 5 dated 14.4.2000 the Petitioner was dismissed from service. 3. The brief facts necessary for adjudication of the writ petition are that the Petitioner was working as Office Assistant in the said 'Samiti' from 20.2.1977 and while in service, he was alleged to have been involved in misappropriation of the fund, financial irregularities, dereliction of duties and also misappropriating the sale proceeds in 'Samiti' for which Petitioner was placed under suspension with effect from 18.5.96 but, he was not even paid his subsistence allowances for a period of three years and neither any charge sheet was served over him nor any disciplinary proceeding was initiated. When the Petitioner challenged his suspension by way of Civil Rule No. 2997/97 the same was disposed of on 2.6.99 by this Court with a direction to the Secretary of the said 'Samiti' to complete the disciplinary proceeding against the Petitioner within a stipulated time under the supervision of the Registrar of Cooperative Societies, Assam the Respondent No. 2. 4. It appears in response to the communication dated 27.2.2000 to return the amount of Rs. 1,89,581.37 said to have been allegedly misappropriated as per in the audit report of the year 1995-96, the Petitioner denied the said claim, however, the Samiti vide its Resolution dated 14.4.2000, resolved to dismiss the services of the Petitioner and Assistant Registrar, Cooperative Society was requested to give his approval to the said Resolution. 5. Despite notices to the Respondents, neither counter affidavit nor affidavit in opposition was filed. According to the Petitioner Assam Services (Discipline and Appeal) Rules, 1964 in short called 'Rules 1964' is applicable to conduct the disciplinary proceedings against the Petitioner. The 'Rule 9' of 'Rules 1964' deals with the imposing of penalty. 5. Despite notices to the Respondents, neither counter affidavit nor affidavit in opposition was filed. According to the Petitioner Assam Services (Discipline and Appeal) Rules, 1964 in short called 'Rules 1964' is applicable to conduct the disciplinary proceedings against the Petitioner. The 'Rule 9' of 'Rules 1964' deals with the imposing of penalty. Rule 9(2) provides that the disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be conducted. The Rule 9(3), 9(4), 9(5), (6) and 9(8) deals with the procedure. The Rule 9(8) provides as under: 9(8) The record of the inquiry shall include: (i) The charges framed against the Government servant and the Statement of allegations furnished to him under Sub-rule (2) (ii) His written statement of defence, if any; (iii) The oral evidence taken in the course of the inquiry; (iv) The documentary evidence considered in the course of the inquiry; (v) The orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the Inquiry; and (vi) A report setting out the findings on each charge and the reasons therefore. 6. According to the learned Counsel for the Petitioner, without any notice or show cause or without charge sheet or any Inquiry, without following the procedure for imposition of penalty including measure penalty the said dismissal of Petitioner in question behind his back was in derogation to the principle of natural justice. Petitioner was to be provided opportunity to controvert the allegations against him. It has been argued on behalf of the State Govt. that the Resolution No. 5 dated 14.4.2000 issued under the joint signatures of Chairman and Secretary of the said 'Samiti' was approved by the Assistant Registrar of the Cooperative Societies which reveals that following money was due to be recovered from Petitioner as per the Audit report of the year 1995-96: Name of the candidate Date of birth 1. Shri Amrit Doley 04.01.1986 2. Shri Srimanta Bora 04.1.1986 3. Jamiruddin Ahmed 05.4.1986 In these circumstance, keeping in view the seriousness of charges the 'Samity' resolved to dismiss the services of the Petitioner in consonance to whether the 'Rules 1964' to be applicable in the present case even if the provisions of 'Rules 1964' are not applicable the dismissal of Petitioner in terms of above resolution in legally correct. 7. Jamiruddin Ahmed 05.4.1986 In these circumstance, keeping in view the seriousness of charges the 'Samity' resolved to dismiss the services of the Petitioner in consonance to whether the 'Rules 1964' to be applicable in the present case even if the provisions of 'Rules 1964' are not applicable the dismissal of Petitioner in terms of above resolution in legally correct. 7. The Allahabad High Court in (2001)2 UPLBEC1976 (Radhe Shyam Pandey v. The Chief Secretary, State of Uttar Pradesh and Ors.) has observed as follows: The Respondents have not conducted the inquiry according to the proper procedure prescribed under Rule 99. No specific date, time and place of inquiry was fixed. Oral and documentary evidence against the Petitioner should have been adduced in his presence and he should have been given an opportunity to cross examine the witness against him and also he should have been given an opportunity to produce his witness and evidence. A dismissal order is a major punishment having serious consequences and hence should be passed only after complying with the rules of natural justice. Since in the present case no regular and proper inquiry was held nor was subsistence allowance paid, hence in these circumstances, it is clear case that the Petitioner had not been afforded a fair opportunity much less a reasonable opportunity to defend himself that has resulted in violation of principle of natural justice and fair play. The ex-parte enquiry is illegal and the order of dismissal dated 23.3.2001 is quashed. However keeping in view the financial losses and irregularities it was kept open to the State to hold a fresh inquiry in accordance with law and pass a fresh order in Radhey Shyam Pandey (supra). 8. Natural justice is a great humanizing principle intended to invest law with fairness and secure justice. The soul of natural justice is fair play in action in view of Maneka Gandhi v. Union of India AIR 1978 SC 597 : (1978) 2 SCR 621 , where the passport of the Petitioner was impounded by the Government of India "in public interest", without affording a opportunity of hearing to the Petitioner before taking the impugned action, therefore, the order was found to be violative of the principles of natural justice. 9. 9. The principle of natural justice had to be considered in the context of the facts situation and in view of the scheme and the rules applicable in a particular case. If an employee, remains absent for more than a stipulated period and statute rules or standing order provide for automatic termination of his services in such an eventuality, without holding inquiry or giving opportunity of being heard, observance of principle of natural justice is mandatory proposition. The Supreme Court has categorically held in a catena of decisions that a statutory rule is void if it stipulates for automatic termination of services of an absenting employee after expiry of a stipulated period [in the light of the decision in Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court and Ors. (1990) 3 SCC 682 ; Gujarat State Road Transport Corporation and Anr. v. Mulu Amra AIR 1994 SC 112 ; Scooters India Ltd. v. Vijay E.V. Eldred (1998) 6 SCC 549 ; Uptron India Ltd. v. Smt. Shammi Bhan AIR 1998 SC 1681 and Scooters India Ltd. v. Mohammad Yaqub and Anr. (2001) 1 SCC 61 . 10. It is well settled legal proposition that every action complained of is to be tested and analysed on the touchstone of doctrine of prejudice. Vide Maj. G.S. Sodhi v. Union of India and Ors. (1991)2 SCC 382 ; State Bank of Patiala and Ors. v. S.K. Sharma (1996) 3 SCC 364 , S.K. Singh v. Central Bank of India and Ors. (1996) 6 SCC 415 ; Rajendra Singh v. State of M.P. AIR 1996 SC 2736 ; Mansoor Ali Khan (supra) and Manika Jain v. State of Rajasthan and Ors.1998 (1) RLW 71]. 11. In K.L. Tripathi v. State Bank of India AIR 1984 SC 273 , the Supreme Court observed as under: It is not possible to lay down rigid rules, as to when the principles of natural justice are to apply, nor as to their scope and extent...there must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirement of natural justice must depend on the facts and circumstance of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with, and so on so forth. 12. The requirement of natural justice must depend on the facts and circumstance of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with, and so on so forth. 12. Just as principles of natural justice ensure fair decision where the function is quasi-judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. (1994) 4 SCC 104 (124) (Assistant Excise Commr. v. Issac Peter)]. 13. The principles of Natural Justice are integral part of the guarantee of equality assured by Article14 of the Constitution. 1993 AIR SCW 1995 : (1993) 3 SCC 259 (D.K. Yadav v. J.M.A. Industries Ltd.)]. Principles of Natural Justice are applicable to both law relating to procure and rule of substantive law. In State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284 , per majority, a seven Judge bench of the Supreme Court held that the rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. In Maneka Gandhi (supra) another bench of seven Judges held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14 [D.K. Yadav (supra)]. 14. Strict adherence to rules to Natural Justice is essential while taking decision affecting rights of a person so observed in (1986) 3 SCC 103 para 22 (Ram Chander v. Union of India) It is a fundamental rule of law that no decision is be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. Both the Privy Council as well as the Hon'ble Supreme Court have in a series of case required strict adherence to the rules of natural justice where a public authority or body has to deal with rights. 15. The observance of the rules of natural justice is not referable to the fatness of the stake but is essentially related to the demands in a given situation. It does not supplant but supplement the law, (1998) 3 SCC 579 para 12 (Jain Exports (P) Ltd. v. Union of India). 16. 15. The observance of the rules of natural justice is not referable to the fatness of the stake but is essentially related to the demands in a given situation. It does not supplant but supplement the law, (1998) 3 SCC 579 para 12 (Jain Exports (P) Ltd. v. Union of India). 16. A fair hearing must be given before taking decision affecting rights of any person as observed in AIR 1987 SC 2257 (O.P Gupta v. Union of India) It is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. There is always 'the duty to act judicially' wherever the rules of natural justice are applicable. There is therefore the insistence upon the requirement of a 'fair hearing'. 17. I have heard learned Counsel for the parties. The provisions of Rules 1964' which deal the procedure for making disciplinary proceeding for awarding major punishment, have not been complied with. It appears that the Petitioner was not served charge sheet indicating definite charges along with documents and materials relied upon. Neither an Inquiry Officer was appointed nor any Inquiry was conducted, therefore, there was no question for the disciplinary authority or the competent Authority to apply its mind to arrive at the finding that the Petitioner was guilty of alleged financial irregularities or misappropriation of fund. The Service of the Petitioner was dismissed behind his back without providing opportunity of hearing and against the principles of natural justice. Therefore, the said resolution dated 14.4.2000 is arbitrary, discriminatory and subsequent order dated 8.6.2000 in reference to the resolution is not legally sustainable. Even if the provisions of Rule 64 are not applicable for disciplinary proceeding against the Petitioner, the said dismissal in question has been made without notice or show cause behind the back without inquiry or without following the principles of natural justice or without affording any opportunity of hearing to the Petitioner. In Mangilal v. State of M.P. (2004) 2 SCC 447 (para 10 and 13) the Supreme Court while dealing a situation where the statute was silent about the observance of the principles of natural justice has held that such statutory silence implies requirement of compliance of principles of natural justice moreso, where substantial rights of parties are considerably affected. In Mangilal v. State of M.P. (2004) 2 SCC 447 (para 10 and 13) the Supreme Court while dealing a situation where the statute was silent about the observance of the principles of natural justice has held that such statutory silence implies requirement of compliance of principles of natural justice moreso, where substantial rights of parties are considerably affected. In view of Mangila (supra) the application of natural justice becomes presumptive unless found excluded by express words of statute of necessary intendment. 18. On analysis of the present case in the light of the settled legal position, I am of the considered view that the impugned order dated 8.6.2000 is to be set aside. However, keeping in view the seriousness of the charges the Petitioner is allegedly involved, the Respondents are at liberty to start the disciplinary inquiry a fresh in consonance to the provisions of law by serving a charge sheet a fresh and the inquiry to be completed in consonance to the principles of natural justice within six months from the production of the certified copy of this order. Petitioner is expected to cooperate the inquiry and shall not take unnecessary adjournments. 19. In view of the above, writ petition is allowed. No order as to costs. 20. Copy of this order be given to Mr. K.C. Mahanta, learned Additional Sr. Govt. Advocate, Assam. Petition allowed.