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2006 DIGILAW 294 (GAU)

P. G. Momin v. Government of Meghalaya

2006-03-24

RANJAN GOGOI

body2006
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. S.K. Deb Purkayastha, learned Counsel for the writ, petitioner and Mr. A.S. Siddique, learned Counsel appearing for the respondents. 2. The challenge in the present writ application is against an Order dated 9.6.2000 removing the petitioner from service. Another Order dated 26.6.2001 passed by the appellate authority dismissing the appeal of the petitioner against the aforesaid Order of removal, is an incidental aspect of the present challenge. 3. The facts are long and an attempt must be made to summarise and put on record only what is essential. The petitioner, at the relevant point of time, was working as a Chainman (Grader-IV post) in the Directorate of Mineral Resources of the Government of Meghalaya. The petitioner, in addition to the Government job that the was doing, was also the Joint Secretary of the Ryngku Union ME School and the Secretary of the Ryngku Garo Union Social Club. A charge memo dated 6.5.1988 was issued to the petitioner asking him to show cause in respect of three separate charges: the first with charge against the petitioner was one relating to absence from duty effect from 6.2.1983 till the date of issuance of the charge memo dated 16.5.1988. The second charge was in respect of alleged misappropriation of Government money amounting to Rs. 6,750 which was sanctioned in favour of the Ryngku Union ME School. The third and the last charge was one relating to misappropriation of Government Grant amounting to Rs. 26,225 which was sanctioned for the Rongua Garo Union Social Club, Rengua. 4. The petitioner received the aforesaid show cause notice but did not submit his reply thereto until 7.3.1998. The disciplinary authority of the petitioner could have, but it did not, hold any ex parte inquiry into the charges levelled and the matter continued to remain in a state of animated suspension. However, after receipt of the show cause reply of the petitioner, the authority decided to hold an inquiry and accordingly appointed an Inquiry Officer. This was sometime in the year 1999. 5. It will be appropriate at this stage to briefly notice what had happened in the inquiry held against the petitioner as, the ultimate answer that the Court has been called upon to provide in the present case may largely depend on the said facts. This was sometime in the year 1999. 5. It will be appropriate at this stage to briefly notice what had happened in the inquiry held against the petitioner as, the ultimate answer that the Court has been called upon to provide in the present case may largely depend on the said facts. a From the records of the inquiry which have been produced before the Court in original by the learned Counsel for the respondents, Mr. A.S. Siddique, it appears that the departmental inquiry against the petitioner really commenced on 21.3.2000 and that too, after an Order was passed to the aforesaid effect by this Court in an earlier writ petition filed by the petitioner, i.e., WP(C) No. 78(SH)99. One M.K. Sharma, a Geologist, was appointed as the Presenting Officer to present the case in support of the charges against the petitioner and one Shri N.K. Chakraborty, Senior Auditor of the Office of the Accountant General was appointed as the Defence Assistant. The Defence Assistant appointed by the petitioner had his written authorisation to so act on 27.3.2000 which was the next date of the inquiry. However, for reasons that need not detain the Court, the inquiry got deferred from one date to another and eventually it was fixed at 11 AM of 5.5.2000. On the said date, i.e., 15.5.2000 the inquiry Officer insisted on a written authorisation, empowering the Defence Assistant of the petitioner to so act on 5.5.2000. The earlier authorisation of the Defence Assistant was for 27.3.2000. The Defence Assistant insisted that he had the approval of his employer to attend the inquiry on all dates and that, if required, he can bring such authorisation on a, later date. However, the Inquiry Officer remained unimpressed and acting on certain written directions issued by the disciplinary authority to the effect that the Defence Assistant must be authorised in writing to act on each date of the inquiry and also that the inquiry should be expedited, refused to allow the Defence Assistant to take part in the inquiry and ordered for holding the inquiry exparte, the date of which was to be intimated to the Presenting Officer (emphasis supplied). Thereafter, it appears that the inquiry recommenced at 2 PM of the same date, i.e., 5.5.2000 in the absence of the petitioner and after taking on record a large number of documents, the Inquiry Officer concluded the proceeding at 4.50 PM of the same date. Thereafter, on 11.5.2000 the Inquire Officer submitted his report 6 to the disciplinary authority holding all the charges to be proved against the petitioner. The disciplinary authority, thereafter, after following the mandate of law applicable in this regard, had passed the impugned Order dated 9.6.2000. The appeal filed by the petitioner against the aforesaid Order having produced no result, aggrieved, the present writ application has been filed. 6. The pleadings brought on record by the contesting parties, the arguments advanced and the records in original, perused and considered by the Court amply demonstrates that the inquiry exparte have already been noticed above. On 5.5.2000, the Defence Assistant appointed by the petitioner was not allowed to participated as his written authorisation by the petitioner was not allowed to participate as his a written authorisation to act as the Defence Assistant was not for the said date but was for an earlier date. The question, therefore, that would arise is whether it is an indispensable requirement of law that a Defence Assistant, after being duly appointed and such appointment having been duly approved by the disciplinary authority, can participate in a departmental proceeding only if he is authorized by his employer in writing to act on each date of the inquiry. No law has been pointed out, perhaps, as no such law exists for such a strange proposition. If the Defence Assistant had been appointment and such appointment has been approved, there is no reason why he should have been debarred from the participation in the departmental inquiry held in the morning of 5.5.2005. Even after exclusion of the Defence Assistant, the petitioner should have been asked to participate in the inquiry. This was not done and in fact, the Order recorded at the conclusion of the morning session of the inquiry held on 5.5.2005 would go to show that the Inquiry Officer had passed orders that it is only the Presenting Officer who will be informed of the next date of the inquiry. This was not done and in fact, the Order recorded at the conclusion of the morning session of the inquiry held on 5.5.2005 would go to show that the Inquiry Officer had passed orders that it is only the Presenting Officer who will be informed of the next date of the inquiry. Accordingly, the Presenting Officer was so informed and the petitioner was not and the inquiry re-commenced at 2 PM of the same date and in the course of about 2Vk hours of deliberations, 26 documents were brought on record on the basis of which the Inquiry Officer had thought it fit to hold all the charges against the petitioner stands proved. 7. The procedure adopted in the inquiry held is indeed unique. Reliance has been placed on principles which are abhorrent to the requirements of natural justice and the basic rights of the petitioner, as a delinquent, to have a fair opportunity appears to have been trampled upon. The principles of natural justice are flexible principles and, therefore, time and again courts have emphasized that such principles to not operate in any straight jacked formula. That is precisely why in cases of certain violations of the principles of natural justice the courts, especially in the recent times, have insisted on proof of prejudice, though the view taken at an earlier point of time was that violation of the principles of natural justice itself is prejudice and no separate prejudice need be shown. However, notwithstanding the slight alteration in judicial review with the marching and advancing times, there may still be situations where proof of prejudice may not be required. This is why this aforesaid principles have been understood to be elastic and flexible. Perhaps, the present is one such case where prejudice need not be separately established as prejudice is writ large. However, a consideration of the report of the Inquiry Officer and the basis on which the Inquiry Officer had come to the conclusion that the petitioner is liable for the charges read with certain documents which the petitioner has brought on the a record of the writ petition, would go to show that, if proof of prejudice is required, indeed, prejudice had also been caused to the petitioner. In support of the first charge, the petitioner has brought on the record of the present writ petition certain medical certificates which, according to him establishes that his absence from duty was not voluntary, but was on account of illness, i.e., reasons beyond his control. Insofar as the second charge is concerned, the petitioner has brought on record a letter dated 5.12.1998 issued by the Headmaster of the concerned school to show that the petitioner was authorized to draw the maintenance grant of Rs. 6,750 from the Deputy Inspector of School. Insofar as the third charge is concerned, the petitioner has brought on record statements of disbursements of such funds to the beneficiaries countersigned by the President of the Club of which he is the Secretary. In this regard, the petitioner has also brought on record the audited balance sheet, certified by the Chartered Accountant, that the grant of Rs. 26,225 was utilised for the purpose for which it was granted. What would be the legal effect of the documents brought by the petitioner is not for the Court to speculate. It was really for the Inquiry Officer to consider the said documents. The Inquiry Officer having fore-closed any such opportunity to enable the petitioner to bring the relevant documents on the records of the inquiry, naturally, prejudice has been caused to the petitioner. 8. For all the aforesaid reasons, I am of the considered view that he conduct of the inquiry against the petitioner and, therefore, the findings recorded there in and the further consequential action taken, i.e., that f of removal of the petitioner from service are all unjustified and untenable actions which would require the Courts interference. I, therefore, set aside the inquiry held against the petitioner as well as the Order dated 9.6.2000 removing the petitioner from service as well as the appellate Order dated 26.6.2001. 9. This would bring the Court to a consideration of the relief/reliefs to which the petitioner would be entitled to. The Order of removal of the petitioner has been set aside, largely, on account of violation of the principles of natural justice. In a given case on Order of removal/dismissal, on the basis of an inquiry which is held to be legally infirm, if interfered by the Court, may not necessarily require the Court to Order reinstatement of the incumbent. The Order of removal of the petitioner has been set aside, largely, on account of violation of the principles of natural justice. In a given case on Order of removal/dismissal, on the basis of an inquiry which is held to be legally infirm, if interfered by the Court, may not necessarily require the Court to Order reinstatement of the incumbent. This is on the principle that the incumbent is yet to exonerate himself of the charge and, therefore, liberty is given to the employer to have a fresh inquiry, if so desired. However, the aforesaid is not an inflexible rule of law knowing no exceptions. In moulding the final relief that is to be granted by the Court, consideration of a wide variety of factors come in. In the present case, I have considered the charges against the petitioner and the materials on the basis of which a the department had sought to prove the said charges, which materials, the Court must put on record will continue be the basis of any further inquiry, if held by the employer. The petitioner has been out of service since 9.6.2000. Earlier to that, i.e., from the year 1988 the petitioner has been under suspension. The petitioner was to a large extent responsible, for the delay that had taken place as he had submitted his written Statement of defence, as already noticed, after a period of 10 years. Taking into account all the aforesaid facts and circumstances, relief of reinstatements with back wages from the date of removal, i.e., 9.6.2000 would adequately meet the ends of justice. The aforesaid consequential relief be now afforded to the petitioner as expeditiously as possible by the respondents who will, of course, be at liberty to initiate a fresh departmental inquiry against the petitioner, if they are so advised. 10. Consequently, writ petition is allowed to the extent indicated above. Appeal allowed