Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 511 (GAU)

Dinesh Chandra Bey v. State of Assam

2009-07-31

AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. The extra-ordinary jurisdiction of this Court has been invoked to annual the departmental proceeding initiated against the Petitioner by the Memorandum of charges dated 21.9.2005/22.09.2005 issued by the Secretary, Assam Higher Secondary Education Council (hereafter referred to as the 'council') as well as, the impugned order of penalty of removal dated 1.12.2006 also by the same authority. 2. I have heard Mr. R. C. Saikia, learned Counsel for the Petitioner and Mr. K.H. Choudhury, Senior Advocate representing the Council being assisted by Mr. Sk. Mukhtar, Advocate. 3. The rival pleadings in short, are indispensable for appropriately appreciating the competing arguments advanced. The Petitioner who, at the relevant time was serving as a L.D.A.- Cum-Typist with the Council and had been entrusted with the duties of Dealing Assistant pertaining to the works related to the H.S. 1st Year Examination, 2005 (for short hereafter referred to as 'Examination') in respect of the institutions of Cachar, Karimganj and Hailakandi Districts, was served with the aforementioned Memorandum of charges setting out the Mowing imputations: CHARGE No. 1: That while entrusted duties as a Dealing Assistant pertaining to works related to H.S. First Year Examination, 2005 in respect of the Institutions of Cachar, Karimganj and Hailakandi Districts, you had received filled in examination forms in respect of 175 candidates set up for H.S. 1st year Examination, 2005 by one Oxford Senior Secondary School through Lakhipur Junior College, Cachar, after the last date stipulated for submission of examination forms by the Council and endorsed to Accounts Branch (receipt counter) for receiving fees, without bringing into the knowledge of your superior authority. You have done so, to facilitate those 175 irregular students for appearing in the H.S. 1st Year Examination, 2005 at Earle H.S. School Examination Centre for undue consideration and thereby placed the whole Council into dark and disrepute. You are, therefore, charged with act of Insubordination and dereliction of official duties. CHARGE No. 2: That for receiving examination forms in respect of 175 irregular students, you have collaborated with one Sri Monikanta Sarma, a part time vocational Teacher of Earle H.S. School and thus involved in criminal conspiracy with Monikanta Sarma this illegal act for your personal gain. You are, therefore, charged with misconduct and commission of act against the interest of the Council. You are, therefore, charged with misconduct and commission of act against the interest of the Council. CHARGE No. 3: It is found in the course of enquiry by the Enquiry Committee that the forms received by you were Photostat Copies of original forms and were found to have tempered. You did not take even minimum car to verify the forms in respect of those 175 candidates. You have also deliberately ignored to impose delay submission fine in respect of 175 candidates amounting to Rs. 3500/- causing loss to the Council for your personal benefit. 4. On being served with the Memorandum of charges, the Petitioner on 28.9.2005 made a request with the Secretary of the Council to allow him to inspect some documents as desired by him which inter alia included the enquiry report in the preliminary enquiry referred to in the Memorandum. Thereby, he also requested to be heard in person and to be allowed to be furnished with the Photostat Copy of the said enquiry report. The records reveal that along with the Memorandum of charges the Council had furnished the lists of documents and witnesses. Whereas, the document sought to be relied upon by the disciplinary authority was disclosed to be the preliminary enquiry report, the witnesses were the persons who were examined in course thereof. 5. According to the Petitioner, inspite of the request being made, he was only allowed to inspect a few of the documents desired and was furnished with the extract of the enquiry report, but was denied access to the others. Notwithstanding the above, he submitted his reply to the charges denying the same. The Council thereafter appointed the Enquiry officer and the Presenting officer to conduct the proceeding and eventually on 2.8.2006 the Enquiry officer submitted his report holding all the charges against the Petitioner to be proved. The second show cause notice was issued to the Petitioner indicating that the penalty of removal from service under Rule 7(6) of the Assam Services (Discipline and Appeal) Rules, 1964 (hereafter referred to as the 'Rules') was proposed and he was thereby asked to submit his show cause. The Petitioner responded to the said notice reiterating his earlier pleas contending inter alia that no copy of the enquiry report had been furnished to him. He iterated his stand of not being furnished with the statement of witnesses recorded in the departmental proceeding. The Petitioner responded to the said notice reiterating his earlier pleas contending inter alia that no copy of the enquiry report had been furnished to him. He iterated his stand of not being furnished with the statement of witnesses recorded in the departmental proceeding. He also highlighted the deniel of necessary documents to him before the enquiry. He also contended that he had been denied the opportunity of cross examining the witnesses of the disciplinary authority and producing his witnesses in defence. He pleaded that the witnesses of the disciplinary authority were examined in his absence. According to him, the Enquiry officer relied on the report of the preliminary enquiry without affording any opportunity to him to cross examine the witnesses whose statements in course thereof (preliminary enquiry) had been recorded and used against him. Without prejudice to his above stand, he however, tendered his unconditional apology citing it to be his first omission in course of long tenure of service. By the impugned order, the penalty of removal had been imposed on him. 6. The Council in its counter while affirming that at the relevant time, the Petitioner had been associated with the duties to receive and take the forms in respect of the students of Cachar, Karimganj and Hailakandi districts seeking to appear in the impending 1st Year Higher Secondary School Examinations, has endorsed the charges brought against him. According to it, the preliminary enquiry based on the report of the Assam Higher Secondary Teachers Association had disclosed a large scale anomaly in connection with the Higher Secondary Final Examination, 2005. It however, denied the imputation of violation of the procedural safeguards as projected by the Petitioner. Asserting that the omission and commission on his part amounts to gross misconduct for which the impugned penalty had been rightly imposed, the Council has pleaded against any interference therewith by the Court. 7. In his affidavit-in-reply, the Petitioner while reiterating his averments in the writ petition insisted inter alia that the Enquiry officer had based his findings on the preliminary enquiry report and the statement of witnesses recorded therein. The additional pleadings of the parties are elaboration of their assertions as set out hereinabove and therefore, need not be traversed in details. 8. In his affidavit-in-reply, the Petitioner while reiterating his averments in the writ petition insisted inter alia that the Enquiry officer had based his findings on the preliminary enquiry report and the statement of witnesses recorded therein. The additional pleadings of the parties are elaboration of their assertions as set out hereinabove and therefore, need not be traversed in details. 8. In course of the arguments, it having transpired that the Enquiry officer's Report in feet, had hot been furnished to the Petitioner before being called upon to respond to the second show cause notice indicating the proposed penalty, by order dated 21.4.2009 this Court directed the Council to furnish a copy thereof to the Petitioner so that he may demonstrate the prejudice caused to him by such omission. It is submitted at the Bar that thereafter on 29.4.2009 a copy of the enquiry report was furnished to the Petitioner by the Council. 9. Mr. Saikia has urged that the departmental proceeding being vitiated by the non observance of the essential procedural safeguards contained in Rule 9 of the Rules, the same is per se non est in law and therefore, the impugned order of penalty in liable to be set aside. According to the learned Counsel, neither the Petitioner was allowed to cross examine all the witnesses of the disciplinary authority, nor, he was permitted to adduce the evidence of his witnesses. He reiterated the Petitioner's grievance of not being allowed to inspect all the documents which he sought and also contended that he (Petitioner) was not allowed the assistance of a defence assistant to conduct the proceeding on his behalf. While contending that the non furnishing of the preliminary enquiry report on which the Enquiry officer had relied in support of the charges, per se vitiated the proceeding, Mr. Saikia has further urged that the failure on the part of the Council to supply a copy of the Enquiry officer's Report before requiring him to submit his reply to the second show cause notice is to be construed as fatal and therefore, in any view of the matter, the departmental proceeding ought to be annulled. Saikia has further urged that the failure on the part of the Council to supply a copy of the Enquiry officer's Report before requiring him to submit his reply to the second show cause notice is to be construed as fatal and therefore, in any view of the matter, the departmental proceeding ought to be annulled. While admitting that the Petitioner at the relevant time as the Dealing Assistant of the Council had been entrusted with the matters pertaining to the impending 1st Year Higher Secondary Examination, 2005, the learned Counsel has urged that the acceptance of the examination forms of 175 candidates duly signed by the Principal of Lakhipur Junior College and countersigned by the officer-incharge of the Earle H.S. School Examination Center cannot be construed to be a misconduct on his part and that therefore, the charge to that effect is misconceived. Mr. Saikia has submitted that as there are several instances in the Council of realization of late fine in connection with the delayed submission of Examination forms, the finding of the Enquiry officer and the Disciplinary Authority holding that the charges against him had been proved and that too in absence of any material whatsoever in support thereof, is on the face of the record arbitrary and perverse. He has also contended that as on a similar charge a Grade IV employee of the Council allegedly involved in the same episode has been let off with a minor punishment, the impugned order of penalty of removal is not only disproportionate but, is discriminatory as well. In support of his submission, Mr. Saikia has placed reliance on the following decisions of this Court: (1) (2001) 3 GLT 209 , Barun Roy v. State of Assam and Ors.; (2) (2003) 1 GLT 57, Khargeswar Borah v. State of Assam and Ors.; (3) (2005) 3 GLT 154, State of Manipur v. Chongtham Homendro Singh; (4) (2007) 1 GLT 648, Mahendra Kr. Singh v. U.O.I.: 10. Mr. Choudhury in reply, with reference to the official records pertaining to the departmental proceeding, has maintained that the assertions of contravention of the mandates of Rule 9 being untenable on facts, the challenge to the departmental proceeding based thereon is liable to be rejected. Singh v. U.O.I.: 10. Mr. Choudhury in reply, with reference to the official records pertaining to the departmental proceeding, has maintained that the assertions of contravention of the mandates of Rule 9 being untenable on facts, the challenge to the departmental proceeding based thereon is liable to be rejected. Pointing out in particular, the relevant portions of the Enquiry officer's Report, the learned Senior Counsel has argued that it would be apparent therefrom that the Petitioner was afforded all reasonable opportunities of defending himself and that it was he who volunteered against examining any witness or cross-examining the witnesses of the disciplinary authority. Mr. Choudhury however, admitted the lapse on the part of the Council in furnishing a copy of the Enquiry officer's Report to the Petitioner before being called upon to submit the reply to the proposed penalty of removal from service. He submitted that in compliance of the order of this Court, the said document had been supplied to the Petitioner on 28.4.2009. The learned Senior Counsel added that the facts and circumstances of the case and the admissions on the part of the Petitioner on significant factual aspects, non supply of the Enquiry officer's Report in time did not prejudice him in any manner and therefore, the same has no relevance vis-a-vis the assailment on the disciplinary proceeding. Mr. Choudhury was categorical that not only the preliminary enquiry did not as such relate to the charges levelled against the Petitioner in the departmental enquiry, the same was by no means relied upon by the Enquiry officer in concluding that the same (charges) had been proved. The learned Senior Counsel on being queried by this Court, however, has admitted that none of the witnesses whose names had figured in the list of witnesses accompanying the documents had been examined by the disciplinary authority in the proceeding and that the list of the persons who had been so examined had not been furnished to the Petitioner either prior to or in course of the proceeding. While refuting in specific terms, the permissibility of realization of late fee after the acceptance of the examination forms as a matter of routine in the Council, the learned Senior Counsel has contended that in the eventualities of such kind, they concerned authorities might have taken a liberal outlook at times which by no means did empower the Petitioner to resort to the same unilaterally on his own. While endorsing the disciplinary action taken by the Council against the Petitioner, the learned Senior Counsel without prejudice to the stand, has urged that in case, this Court holds the disciplinary proceeding to be not sustainable in law, it (council), in the interest of organizational discipline be permitted to resume the proceeding from the stage of the furnishing of the copy of the Enquiry officer's Report to the Petitioner. Mr. Choudhury distinguished the authorities sought to be relied upon by the Petitioner contending that the same had been delivered in different contextual facts. 11. The pleadings and the arguments have received the due consideration. Abare reading of the charges levelled against the Petitioner brings out the following features: i) he, at the relevant time was the Dealing Assistant of the Council entrusted with the works related to H.S. 1st Year Examination, 2005 in respect of the institutions of Cachar, Karimganj and Hailakandi Districts; ii) he had received filled in examination forms in respect of 175 candidates set up for H.S. 1st Year Examination, 2005 by one Oxford Senior Secondary School through Lakhipur Junior College, after the last date stipulated for submission thereof; iii) he had endorsed such forms to the Accounts Branch for receiving fees, without bringing it to the knowledge of his superior authority, thereby exposing the Council to disrepute; iv) he collaborated with one Sri Monikanta Sarma, a part time vocational Teacher of Earle H.S. School in receiving such forms; v) the forms which were Photostat Copies were tampered and that he before accepting the same did not even take the minimum care to verify the same; vi) he deliberately ignored to impose delay submission fee in respect of such candidates amounting to Rs. 3500/- thus causing loss to the Council for his personal benefit. 12. The Petitioner because of his above acts and omissions was charged with the misconduct, insubordination, dereliction of official duties, wilful negligence, indiscipline, manipulation of official documents prejudicial to the interest of the council. 3500/- thus causing loss to the Council for his personal benefit. 12. The Petitioner because of his above acts and omissions was charged with the misconduct, insubordination, dereliction of official duties, wilful negligence, indiscipline, manipulation of official documents prejudicial to the interest of the council. The written reply submitted by the Petitioner to the charges reveals his plea that on 10.2.2005 while he was acting as a Dealing Assistant of the Council with the duties and the responsibilities enumerated hereinabove, one gentleman had approached him introducing himself to be the Principal of Lakhipur Junior College, Cachar and requested him to accept the filled in forms in respect of 175 candidates of the said college and that he had informed the said gentleman that the last date for submission of examination forms without fine had already been expired on 1.2.2005, but the same can be accepted only after payment of the late fine @ Rs. 20/- per candidate. According to him, the said gentleman intimated him that he did not have enough money towards the late fine to be paid immediately and requested him to accept the forms assuring that the amount would be paid before the commencement of the examination. However, as the Petitioner had to remain busy in connection with the aforesaid works from the second week of February, 2005 to the 1st week of April, 2005, he did not get time to verify the records which were submitted by the Principal, Lakhipur Junior College in respect of the said candidates. As soon thereafter the records were seized, he could not take necessary steps for realization of late fine. He insisted to have acted bonafide on the request of the Principal, Lakhipur Junior College. He also maintained to have intimated the said gentleman that in case the late fine was not paid before the commencement of the examination, the results of the candidates would be withheld. He also referred to the subsisting practice of the Council of receiving forms by the Dealing Assistant even belatedly, in case of urgency. He, however, denied his involvement or association with one Monikanta Sarma as alleged. According to him, the forms were in order and also cited the instances of delayed forms received by the Council in the past. He reiterated that the examination forms were accepted on the assurance of the Principal, Lakhipur Junior College that the late fee of Rs. He, however, denied his involvement or association with one Monikanta Sarma as alleged. According to him, the forms were in order and also cited the instances of delayed forms received by the Council in the past. He reiterated that the examination forms were accepted on the assurance of the Principal, Lakhipur Junior College that the late fee of Rs. 3500/- would be paid before the commencement of the examination. 13. The Enquiry officer's Report though indicates that the documents offered in the proceeding included the preliminary enquiry report and the statements amongst others of Monikanta Sarma, Vocational Teacher and the Principal, Lakhipur Junior College, the text of the Enquiry officer's Report per se does not very demonstratively evidence any reliance thereon. It, however, discloses that as many as 11 witnesses were cited by the disciplinary authority different from those figuring in the list accompanying the Memorandum of Charges. As a matter of fact, the Enquiry officer's report contains a reference of only two witnesses therefrom namely, Jitram Dutta and Bapan Barman. Noticeably, the Enquiry officer had recorded that during the enquiry the Petitioner had been repeatedly asked as to whether he wanted to inspect any other document and examine/cross examine any other witness, but he declined to do so. On a consideration of the evidence before him, the Enquiry officer, returned a finding that the Petitioner had received the examination forms of 175 candidates after the due date without the prior approval of the authority concerned. According to the Enquiry officer, as a responsible official of the Council, the Petitioner ought to have verified the identity of the person presenting the examination forms after the due date and that too without payment of the late fine. He also recorded that the Photostat Copies of the forms were tampered. On a scrutiny of such forms, the Enquiry officer also came to the finding that the same were not countersigned by the Principal of Earle Higher Secondary School. The failure on the part of the Petitioner to realized the late fine was construed to be an act adverse to the interest of the Council. The Enquiry officer in the facts and circumstances also inferred a collusion of his with Sri Monikanta Sarma. 14. The official records when cross checked with the grievances raised on behalf of the Petitioner seem to endorse the same to a great extent. The Enquiry officer in the facts and circumstances also inferred a collusion of his with Sri Monikanta Sarma. 14. The official records when cross checked with the grievances raised on behalf of the Petitioner seem to endorse the same to a great extent. The departmental proceeding admittedly had been drawn up under the Rules and was professed to be conducted in terms of Rule 9 thereof. In terms of Rule 9(2) at the time of delivering the charges, the Disciplinary Authority is to invariably furnish to the delinquent officer the list of documents and the witnesses by which each article of charge is proposed to be sustained. Admittedly, none of the witnesses cited in the list accompanying the Memorandum of Charges had been examined by the disciplinary authority in support of the charge. There is nothing on record to indicate that the Petitioner was intimated of the list of fresh witnesses in connection therewith which is an apparent violation of the letter and spirit of Rule 9(2) of the Rules. The official records reveal that in response to the Petitioner's reply to inspect the documents referred to in his application dated 28.9.2005, he was permitted to do so and was intimated of the decision to that effect by letter dated 18.10.2005 issued by the Secretary, Assam Higher Secondary Council. The Petitioner has admitted that some of the documents specified by him in fact, were thereafter allowed to be inspected by him. He has admitted further that the extracts of the preliminary enquiry report were also supplied to him. The proceedings of the departmental enquiry further reveal that on 3.5.2006 the Petitioner was allowed to inspect all the documents of his choice. Hence, his plea of denial of opportunity of inspecting the documents in the estimate of this Court cannot be sustained. 15. The records of the departmental proceeding however, do not establish that the same was conducted scrupulously in the manner as contemplated in Rule 9. Though the documents of the proceeding demonstrate the presence of the Petitioner in course thereof, the same do not unmistakably endorse that the witnesses examined on behalf of the disciplinary authority were cross examined by him. The records of the departmental proceeding however, do not establish that the same was conducted scrupulously in the manner as contemplated in Rule 9. Though the documents of the proceeding demonstrate the presence of the Petitioner in course thereof, the same do not unmistakably endorse that the witnesses examined on behalf of the disciplinary authority were cross examined by him. Though the Enquiry officer in his report has in clear terms observed that the Petitioner had declined that opportunity when offered, except such a statement in the report there is no other tangible material in the proceeding of the departmental enquiry to support the same. As a matter of fact, the records relating to the proceeding demonstrate a summary approach by the Enquiry officer which per se is opposed to the scheme as outlined in Rule 9 of the Rules. In other words, the scrutiny of the records of the disciplinary proceeding leaves this Court with the impression that the same was not administered in terms of framework of Rule 9 and in phases as contemplated therein, assuredly, to secure the necessary procedural safeguards to the delinquent officer so that no prejudice is caused in his defence. The failure on the part of the disciplinary authority to furnish him with a copy of the Enquiry officer's Report to the Petitioner before requiring him to submit an explanation to the proposed penalty of removal from service is also transgressive of the Rules, per se causing prejudice to him. 16. On a totality of the considerations as above, this Court is therefore constrained to hold that the departmental proceeding conducted against the Petitioner has been furthered in contravention of the letter and spirit of Rule 9 of the Rules and therefore being vitiated in law has to be interfered with. Ordered accordingly. 17. In order to decide the next course of action, this Court cannot be oblivious of the admitted facts. As observed hereinabove, the Petitioner who at the relevant time was a Dealing Assistant of the Council was entrusted amongst others with the responsibility of accepting the examination forms for the impending Higher Secondary 1st Year examination scheduled to be held in the month of March, 2005. As observed hereinabove, the Petitioner who at the relevant time was a Dealing Assistant of the Council was entrusted amongst others with the responsibility of accepting the examination forms for the impending Higher Secondary 1st Year examination scheduled to be held in the month of March, 2005. The instructions received from the Controller of Examinations dated 2.2.2005 for the Examination Branch in this regard (Annexure-8 to the writ petition) on which much reliance has been placed by the Petitioner in clear terms mandate the payment of delay fine @ Rs. 20/- per candidate, subject to the condition that the quantum of delay fine payable by the institution shall not be less than Rs. 50/-. This stipulation as the above document demonstrates, is for the submission of the examination forms on or before 11.2.2005, the last date thereof without fine being 1.2.2005. It is apparent from the said document that any examination form after 11.2.2005 cannot be accepted without the prior approval of the higher competent authority of the Council. Unmistakably therefore, the examination forms of the 175 candidates submitted on 10.2.2005 ought to have been accepted in terms of the above instructions only on payment of late fine and not otherwise. The defence taken by the Petitioner reveals in clear terms that the said 175 examination forms which had been offered for submission after the due date, were accepted without realizing the late fine of Rs. 20/- per candidate. Whereas, the Council's assertion is that the same could not have been done by the Petitioner without its prior approval, he has cited previous instances to justify his action. The Council is categorical in its pleading that even in such an eventuality, the Petitioner on his own cannot take the decision in the matter and the appropriate authority is the Council alone which on an assessment of the actual fact situation is to decide as to whether any relaxation can be accorded or not. The fact remains that in the case in hand, the Petitioner permitted submission of 175 examination forms offered after the due date without realization of late fine in violation of the standing instructions. 18. The fact remains that in the case in hand, the Petitioner permitted submission of 175 examination forms offered after the due date without realization of late fine in violation of the standing instructions. 18. It is, in this background, that inspite of the above vitiating factors rendering the departmental proceeding nonest in law, this Court is not inclined to draw a curtain on the episode and considers it expedient in the interest of the official discipline to leave the issue with the Council to take an appropriate decision in accordance with law vis-a-vis the Petitioner. It is made clear that this Court has not expressed any opinion with regard to the merit of the defence of the Petitioner as indicated hereinabove and it would be within the exclusive domain and discretion of the Council to decide its future course of action. 19. In the result, the departmental proceeding as well as the order of penalty are quashed. The matter is left to the Council to decide afresh as to the action which it intends to take against the Petitioner. As the matter has been left to the Council to be finally decided in the facts and circumstances of the case, this Court is inclined to provide a timeframe to it if it intends to pursue the issue. The Council, if is inclined to further the disciplinary proceeding would restore it from the stage of submission of the show cause by the Petitioner to the Memorandum of Charges and complete the process within a period of three months from such resumption. In the above factual premise, this Court refrains from passing any order for reinstatement with consequential benefits. In case, however, the Council decides to drop the matter against him or fails to complete its exercise against him within the time stipulated, the Petitioner would stand reinstated in service with consequential benefits. The Petitioner, however to be entitled to this benefit on the default of the Council would have to cooperate with it for meeting the deadline so fixed. 20. The petition allowed in the above terms. No costs. Petition allowed