Mridula Chanda v. Principal Secretary, N. C. Hills Autonomous Council
2009-04-30
AMITAVA ROY
body2009
DigiLaw.ai
JUDGMENT Amitava Roy, J. 1. The order dated 15.3.2008 of the Additional Director (Hills) i/c, Haflong placing the petitioner under suspension pending drawal of departmental proceeding against her forms the subject matter of challenge in the instant proceeding. 2. I have heard Mr. S.D. Choudhury, Learned Counsel for the petitioner and Mr. S.K. Medhi, learned Standing Counsel, North Cachar Hills Autonomous council (hereafter for short, referred to as the 'council'). 3. At the time of passing of the impugned order, as the writ petition discloses, the petitioner was holding the charge of the office of the Principal, Government Boys Higher Secondary School, Haflong (hereafter referred to as the 'School'). According to her, the impugned action lacks bona fide having its roots in a complaint lodged by her against Sri Swapan Kumar Barman, Assistant Teacher of the school who is a close relation of the respondent No. 4, i.e., Inspector of Schools, NC Hills District Council, Haflong, Following an incident of unpleasant conduct by him, as alleged by the petitioner, she had submitted a written complain before the Inspector of Schools, NC Hills District Circle, Haflong on 11.12.2007 and also took the matter before the Deputy Commissioner, NC Hills, Haflong. The issue, however having been resolved following an apology expressed by Sri Barman on the intervention of the Inspector of Schools, NC Hills District Circle and ors, she withdrew her complaint. However, she was by communication dated 4.3.2008 of the Inspector of Schools, NC Hills District Circle asked to explain her conduct of approaching the higher authorities at a time when the departmental authority was in seisin of the process. Though the petitioner replied on 14.3.2008, the impugned order was passed a day thereafter and eventually by communication dated 8.4.2008, (Annexure-8 to the writ petition) a departmental proceeding was drawn up against her under the Assam Services (Discipline and Appeal) Rules, 1964 ('the Rules') on various charges as set out therein. The petitioner has alleged that she thereafter by several letters addressed to the departmental authority sought for an opportunity of inspection of the relevant documents, but on all occasions, she was informed that the same would be provided at the time of the enquiry. 4. Being aggrieved, the petitioner had approached this Court with WP(C) No. 1673/2008 and by order dated 2.5.2008 while issuing notice therein, further proceedings of the departmental enquiry were stayed.
4. Being aggrieved, the petitioner had approached this Court with WP(C) No. 1673/2008 and by order dated 2.5.2008 while issuing notice therein, further proceedings of the departmental enquiry were stayed. The petitioner has maintained that in view of the developments subsequent thereto, whereby she had been provided with an impression that the departmental proceeding would be disposed of early, she withdrew the writ petition which was accordingly closed on 21.11.2008 with a liberty to her to file a writ petition afresh, if need be. The petitioner has returned to this Court, with the grievance of undue delay, unfairness in approach and arbitrary and unfettered exercise of discretion resulting in her victimization by unnecessary continuance of her suspension. She has asserted that though denied an opportunity of inspection of the documents, she in the meantime, has submitted her written reply to the charges of imputations. According to the petitioner, the departmental proceeding is also vitiated by contravention of the procedural safeguards enjoined by Rule 9 of the Rules. 5. The respondent Nos. 1, 3 and 4 in their joint affidavit, while denying the allegation levelled by the petitioner, have contended that the departmental proceeding having been stalled in view of the interim order dated 2.5.2008 passed in WP(C) No. 1673/2008 instituted by the petitioner, the plea of delay is per se untenable. Pointing out that the interim restraint had prevailed for the period 2.5.2008 to 21.11.2008 and that thereafter steps are being taken for appointment of the Enquiry Officer and the Presenting Officer to proceed with the enquiry, the answering respondents have denied the imputation of unfairness in action. They have specifically denied that the order of suspension is a sequel to the complaint lodged by her against Sri Swapan Barman, Assistant Teacher of the school. They assert that the charges based on the materials on record would proved in the disciplinary proceeding. While alleging that the petitioner had indulged in mustering pressure on the departmental authorities to call off the disciplinary proceeding, it has been stated that the charge of denial of opportunity of inspection as made by her is also frivolous. It has been explained that out of 8 documents mentioned in the list accompanying the memorandum of charges, the petitioner in her letters dated 11.4.2008, 15.4.2008 and 16.4.2008 had clarified that she need not be furnished with those at Sl. Nos. 1 to 7.
It has been explained that out of 8 documents mentioned in the list accompanying the memorandum of charges, the petitioner in her letters dated 11.4.2008, 15.4.2008 and 16.4.2008 had clarified that she need not be furnished with those at Sl. Nos. 1 to 7. As no document in particular had been identified under Sl. No. 8, according to the respondents, the deferment of the inspection thereof, till the stage of the enquiry would not visit the petitioner with any prejudice. While pointing out that the memorandum of charges had been issued within a month of the order of suspension, it has been pleaded that the indictment of delay is frivolous. The respondents have admitted that after disposal of the earlier writ petition, the petitioner has filed her written reply in defence to the charges. 6. Mr. Choudhury has urged that the impugned order of suspension having stemmed out of extraneous considerations, the same is liable to be interfered with in the interest of justice. He has insisted that the undue delay in disposal of the departmental proceeding while keeping the petitioner under suspension is grossly illegal and in particular in violation of the Office Memorandum No. EDG.67/82/2 issued in the year 1982, by the Government of Assam which prescribes the outer limit of six months therefor. As the period is long over and no tangible step has been taken in. compliance of this mandate, on this ground alone, the impugned order of suspension ought to be interfered with, he urged. 7. Mr. Medhi in reply has contended that the delay, till this stage of the instant proceeding if any, being mainly on the count of the petitioner, she is estopped from questioning the departmental proceeding on that ground. Relying on various letters of the petitioner, Mr. Medhi has argued that having regard to the nature of the charges, sought to be relied upon by the disciplinary authority, the stand taken by it to afford an opportunity to the petitioner to inspect the document contemplated in Sl. No. 8 of the list of documents, is consistent with the letter and spirit of Rule 9. The Learned Counsel has urged that the petitioner's reinstatement at this stage would prejudice the enquiry and also subvert official discipline. 8. The pleadings of the parties and the rival arguments have received the due consideration of this Court.
No. 8 of the list of documents, is consistent with the letter and spirit of Rule 9. The Learned Counsel has urged that the petitioner's reinstatement at this stage would prejudice the enquiry and also subvert official discipline. 8. The pleadings of the parties and the rival arguments have received the due consideration of this Court. The impugned order of suspension on the face of it, evidences that it had been in contemplation in a departmental proceeding against the petitioner. The memorandum of charges being dated 8.4.2008, the initiation of the departmental proceeding thereby cannot be construed to be unduly delayed. In view of the charges contained therein, in the estimate of this Court, the consistent stand of the respondents that in the face thereof, her continuance as the Principal of the college would undermine the discipline and prejudice the enquiry underway, cannot be trivialized. Considering the office which the petitioner holds and in absence of any clinching evidence of Jack of bona fide on the impart of the respondents, any interference by this Court with the impugned order of suspension at this stage is considered inexpedient. 9. Admittedly, the petitioner had approached this Court earlier with WP(C) No. 1673/2008 with an identical challenge based on the plea of denial of reasonable opportunity in the proceeding which eventually stood withdrawn at her instance. Though at the institution of the said writ petition, the departmental proceeding had already been initiated by memorandum of charges dated 8.4.2008, further progress thereof was stalled in view of the interim order dated 2.5.2008 which stood vacated on 21.11.2008 on the closure of the writ proceeding. During this period, in the face of the interim restraint, the respondents could not have furthered the departmental proceeding. The pendency of the departmental proceeding during this period cannot be thus deemed to be at the instance of the respondents. Even if, the period of six months prescribed by the office memorandum relied upon by the petitioner for completion of the departmental proceeding involved, is applicable to the facts of the case. In the above factual premise, arithmetically as on date, the said time limit has not been breached. In the above backdrop of the facts, the petitioner's cavil of delay does not commend for acceptance.
In the above factual premise, arithmetically as on date, the said time limit has not been breached. In the above backdrop of the facts, the petitioner's cavil of delay does not commend for acceptance. Both in view of conflicting stands of the parties, qua, the issue of inspection of documents and the withdrawal of the assailment recorded therein in WP(C) No. 673/08, annulment of the departmental proceeding is also not warranted at this stage. Noticeably, though the petitioner has voiced some grievances alleging denial of reasonable opportunity to inspect the documents sought to be relied upon by the disciplinary authority, no relief for invalidation thereof (disciplinary proceeding) has been prayed for in the instant petition. This Court, therefore, is not inclined to impede the progress thereof either. 10. Notwithstanding the above, the departmental proceeding having been initiated under the Rules, the respondents are obliged in law to observe the rigour of the procedural safeguards mandated thereby. As the petitioner is under suspension, they would speed up with the departmental proceeding and complete the same without delay, however, strictly in accordance with the procedure established by the Rules, preferably within a period of three (3) months from the date of receipt of the certified copy of this order. 11. The petition stands disposed in the above terms. No costs.