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2006 DIGILAW 198 (GAU)

Nripendra Nath Medhi v. State of Assam

2006-02-28

RANJAN GOGOI

body2006
JUDGMENT Ranjan Gogoi, J. 1. An order dated 03.08.2001 removing the Petitioner from service is the subject matter of challenge in the present writ petition. 2. The Petitioner was at the relevant point of time working as a Station Superintendent of the Assam State Transport Corporation, hereinafter referred to as the ASTC and was posted as the in Charge of the Dispur City Service. He was brought on transfer to the aforesaid post sometime in the month of February 2000. On 9.11.2000 a charge memo was issued to the Petitioner levelling 3 charges against him and asking him to show cause. Reduced to its essentials, charge No. 1 was in respect of the alleged negligence on the part of the Petitioner in not realizing the waybill challans from the conductors of the City Service. As per the statement of allegations furnished along with the charge memo, the facts on which the aforesaid charge was levelled appears to be that the conductors of the City Service of the ASTC were not regularly depositing their challans along with the proceeds thereof after completion of necessary trips. Specifically, it was alleged that on 7.5.2000, out of 42 numbers of trips only 7 numbers of way bill challans were deposited and similarly on 8.5.2000 out of 50 trips undertaken, only 8 numbers of waybill challans were deposited. There being a difference between the proceeds of the challans deposited and the amounts unpaid, the Petitioner as the Station Superintendent was alleged to have been negligent in not realizing the amounts due to the Corporation by ensuring the timely deposit of the challans. On the said facts, commission of breach of trust as well as gross misconduct by the Petitioner was levelled as the second and third charge mentioned in the charge memo dated 9.11.2000. 3. On receipt of the charge memo along with the statement of allegations, the Petitioner submitted his reply dated 20.11.2000. In his reply, the Petitioner pointed out that he had joined in the Dispur Station on 14.2.2000 and at that time there were a huge number of under posited challans pending. According to the Petitioner, after he had joined at the Dispur Station, he had informed the Divisional Superintendent verbally and also had reported in writing on 24.2.2000 indicating the names of the conductors who had not deposited the challans along with the challan numbers. According to the Petitioner, after he had joined at the Dispur Station, he had informed the Divisional Superintendent verbally and also had reported in writing on 24.2.2000 indicating the names of the conductors who had not deposited the challans along with the challan numbers. The Petitioner, in his reply had further stated that he had repeated the said process by submitting another report-dated 8.3.2000. The Petitioner had further contended that on 12.3.2000 he had withdrawn 23 Nos. of conductors for irregular deposit of challans and that on 12.4.2000 when salary for the month of October 1999 was paid to the conductors, he had adjusted a large number of challans from the salaries of the defaulting conductors and the amounts realized by the process of adjustment had been created to the account of the ASTC. However, as the practice had continued even thereafter, the Petitioner had filed a third report to the superior authority on 24.4.2000. Copies of the aforesaid reports submitted by the Petitioner to the superior authorities were enclosed with his reply. 4. The disciplinary authority not being satisfied, decided to hold an enquiry and one S.N. Barua was appointed as the enquiry officer. The enquiry Officer conducted a detail enquiry into the charges levelled wherein the Petitioner had participated. At the conclusion of the enquiry, the enquiry Officer submitted his report dated 25.2.2001 holding the three charges against the Petitioner to have been proved. The disciplinary authority, thereafter, i.e., on 13.3.2001 forwarded to the Petitioner a copy of the enquiry report along with its tentative view in the matter, i.e., to accept the report of the enquiry and to impose the penalty of removal from service on the Petitioner. The Petitioner did not avail of the opportunity to file a reply as granted by the notice dated 13.3.2001 where after by the impugned order dated 3.8.2001 the Petitioner had been removed from service. Aggrieved, the present writ petition has been filed. 5. I have hearted Shri R.C. Saikia, learned Counsel for the Petitioner and Ms. U. Baruah, learned Standing Counsel, ASTC. 6. Aggrieved, the present writ petition has been filed. 5. I have hearted Shri R.C. Saikia, learned Counsel for the Petitioner and Ms. U. Baruah, learned Standing Counsel, ASTC. 6. Shri R.C. Saikia, learned Counsel for the Petitioner has argued that in view of the fact that the practice of non-deposit of challans was an existing and prevailing practice in the Corporation, which was occasioned by non-payment of timely salary to the employees of the Corporation and the said to having been pointed out by the Petitioner in his reports to superior authorities submitted on 24.2.2000, 8.3.2000 and 24.4.2000, the allegations of negligent performance of duties, breach of trust and misconduct on the part of the Petitioner would have no legs to stand. Shri Saikia has submitted that the Petitioner, on joining in the post of Station Superintendent in the Dispur Station on 14.2.2000, found a large number of under posited challans and when all efforts in this regard had failed he had informed his superior authority repeatedly by the three reports particulars of which have already been noticed. As the said practice continued to prevail even thereafter, the Petitioner, Shri Saikia has argued, had been singled out for no fault of his own and the imposition of penalty of removal from service on the Petitioner, on the basis of charges levelled, is wholly unauthorized in law. 7. Ms. U. Baruah, learned Standing Counsel, ASTC, in reply, has submitted that the submission of the reports dated 24.2.2000, 8.3.2000 and 24.4.2000 as claimed by the Petitioner has not been established in the enquiry held and in view of the finding recorded to the said effect by the enquiry Officer, the defence taken by the Petitioner is of doubtful credibility. As the submission of the reports dated 24.2.2000, 8.3.2000 and 24.4.2000 by the Petitioner have not been proved and established, learned Counsel for the ASTC had submitted that an inference must necessarily follow that the Petitioner made no attempt to have the undeposited challans deposited in his office by the defaulting conductors, and therefore, the charges levelled against the Petitioner by the charge memo dated 9.11.2000 stands fully established. In view of the gravity of the charges, the punishment of removal from service is justified, it is urged. 8. The rival cases projected before the Court by the respective counsels have received all the attention and consideration that was considered necessary. In view of the gravity of the charges, the punishment of removal from service is justified, it is urged. 8. The rival cases projected before the Court by the respective counsels have received all the attention and consideration that was considered necessary. The facts of the case and the arguments and counter arguments advanced demonstrate Jiat the crucial question that would be required to be determined by the Court is whether the Petitioner can be understood to have duly discharged his duties, in so far as deposit of the undeposited challans is concerned. The circumstances in which the waybill challans were not being deposited by the candidates has already been noticed. According to the Petitioner he had submitted three reports dated 24.2.2000, 8.3.2000 and 24.4.2000 to the superior authority, highlighting the said facts. A contention has been raised to the contrary by the learned Counsel for the Corporation. The aforesaid question was gone into by the enquiry Officer and the enquiry Officer recorded a conclusion that the original copies of the aforesaid reports were not found in the departmental file. The finding recorded by the enquiry Officer in this regard must be noticed carefully. The finding recorded is not to the effect that the Petitioner had not submitted the reports in question. On the contrary, the finding is that the originals of the reports are not available. There can be a wide variety of reasons which this Court need not speculate, as to why the originals were not found in the departmental record. If the originals were not to be found because the Petitioner did not submit the reports at all the enquiry Officer after holding a detailed enquiry ought to have recorded a specific finding to the said effect. Such a specific finding is conspicuously absent in the report of the enquiry Officer. The enquiry Officer after recording what has been noticed proceeded in the matter to consider the tenability of the reports as if the same had been submitted. The aforesaid approach of the enquiry Officer would itself be indicative of the fact that the enquiry Officer had entertained some doubts in the matter and, therefore, he had considered it prudent to test the veracity of the reports, on an assumption that the same had been submitted by the Petitioner. The aforesaid approach of the enquiry Officer would itself be indicative of the fact that the enquiry Officer had entertained some doubts in the matter and, therefore, he had considered it prudent to test the veracity of the reports, on an assumption that the same had been submitted by the Petitioner. In this regard, the enquiry Officer took into account a subsequent report of the Petitioner, submitted on 10.5.2000 and examined the contents of the said report vis-a-vis the contents of the earlier reports dated 24.2.2000, 8.3.2000 and 24.4.2000. In doing so, the enquiry Officer noticed that while in the earlier reports submitted by the Petitioner the number of defaulting conductors were significant, such number of defaulting conductors had come down in the subsequent report dated 10.5.2000. The aforesaid circumstance was understood by the enquiry officer to be a factor pointing against the veracity of the reports claimed to have been filed by the Petitioner before the superior authority. This Court must notice at this stage that in coming to the aforesaid conclusion the enquiry Officer overlooked a vital aspect of the matter, i.e., that in the month of April 2000 the salary of the conductors for the month of October 1999 was paid and at the time of payment of such salary a huge number of unadjusted challans were adjusted by the Petitioner. The payment of such salary took place on 12.4.2000. The discrepancy noticed by the enquiry Officer in the report of the Petitioner dated 10.5.2000 and the reports dated 24.2.2000, 8.3.2000 and 24.4.2000 could have been appropriately clarified by the aforesaid fact, i.e., payment of salary on 12.4.2000 and adjustments therefrom which fact is borne out by the materials on record. Had the aforesaid fact, i.e., adjustment of the undeposited challans on 12.4.2000 been taken note of, perhaps the conclusion that would have been reached by the enquiry Officer would have been otherwise the Petitioner had repeatedly informed his superiors of the huge number of undeposited challans and his unsuccessful attempt to have the same adjusted and no action was taken by the superior authorities, facts that the Court must hold in favour of the Petitioner in the circumstances noted above, surely, the Court must not hesitate to come to the conclusion that the Petitioner cannot be held responsible for what had happened and had persisted. The finding of guilt recorded by the enquiry Officer in his report dated 25.5.2001, therefore, suffers from a fundamental error and all subsequent actions, including the decision to remove the Petitioner from service, having been taken on the basis of the report of the enquiry, all such actions must be held by the Court to be legally infirm. There is one vital aspect of the case that would require to be dealt with by the Court at this stage. The power of judicial review with regard to imposition of punishment following a full fledged enquiry into specific charges levelled against a delinquent has always been understood to be a circumscribed power to be deployed not to interfere with a decision on its merits but to correct errors in the decision making process. The power of judicial review vested by Article 226 of the Constitution in the superior Courts are circumscribed by limitations which are always self imposed and in a given case where the conclusion on facts is vitiated by patent errors and injustice is occasioned, the writ power cannot be understood to recognize any limitation. In such cases, the exercise of the writ power must be in a plenary form and without any limit so as to do justice between the parties. It is the exercise of such power that has been resorted to by the Court in the present case. 9. For the aforesaid reasons, I am of the view that the order dated 3.8.2001 removing the Petitioner from service has to be interfered, which I hereby do. The Petitioner be reinstated in service forthwith. Ordinarily, the present order of interference and consequential reinstatement in service ought to have been accompanied by a further order for payment of back wages, which the Petitioner was unjustly and unjustifiably deprived. However, as the learned Counsel for the ASTC has indicated the financial difficulties of the Corporation and its inability to bear the burden, I am of the view that the reinstatement of the Petitioner with 50% back wages would adequately meet the ends of justice. It is, therefore, ordered that 50% of the back wages of the Petitioner, computed from the date of his removal from service, be paid to the Petitioner following his reinstatement without any delay.