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2010 DIGILAW 451 (GAU)

Renu Barman v. State of Assam

2010-06-25

AMITAVA ROY, C.R.SARMA

body2010
JUDGMENT Amitava Roy, J. 1. The Appellant is aggrieved by the judgment and order dated 25.04.2007 passed in W.P. (C) No. 5785/2003, dismissing the same. The writ Petitioner therein had challenged the decision to dismiss her from the service of the Assam Khadi and Village Industries Board, Guwahati (hereafter for short referred to as the Board). 2. We have heard Mr. A. Dasgupta, learned Counsel for the Appellant and Mr. N.C. Baruah, Senior Advocate assisted by Mr. J.C. Choudhury, Advocate for the Respondent Board. 3. The run up of facts to the instant appeal, in brief, has to be outlined. The Appellant was appointed as Lower Division Assistant (hereafter, for short referred to as the LDA) under the Board vide order dated 09.01.1975. Being sick she availed medical leave from 15.05.1994 to 23.06.1994. As even thereafter she did not recover and had to remain under medical treatment, she could not join her duties. She returned being cured in the last part of August, 1996, but was not allowed to join her post when she went to the office therefor. Initially she was informed that her services have been terminated and, eventually, she was handed over a copy of the order dated 20.01.1996 of the Chief Executive Officer of the Board removing her from service for irresponsible conduct, negligence to duty, insubordination and arrogance. Being aggrieved, the Appellant submitted representation before the higher authorities of the Board and other fora and, eventually, on the direction of the Chief Executive Officer of the Board, an officer thereof was entrusted to enquire against the imputations, which had led to her ouster. The Inquiry Officer, by his letter dated 24.01.2002 having required her to appear in the inquiry, she participated therein. According to her, she was not permitted to take the assistance of a person of her choice as her defence assistant. Besides, no formal charge sheet was served on her and the procedure otherwise prescribed by law for such an inquiry was not followed as well. Finally the Inquiry Officer submitted his report, on the basis whereof, by order dated 15.05.2002 of the Chief Executive Officer of the Board, she was dismissed from service. Situated thus, she approached this Court with W.P. (C) No. 5785/2002 assailing the impugned decision (s) of her dismissal from service and also the procedure undertaken therefor. Finally the Inquiry Officer submitted his report, on the basis whereof, by order dated 15.05.2002 of the Chief Executive Officer of the Board, she was dismissed from service. Situated thus, she approached this Court with W.P. (C) No. 5785/2002 assailing the impugned decision (s) of her dismissal from service and also the procedure undertaken therefor. The learned Single Judge, by the judgment and order dated 25.04.2007, impugned herein, rejected the writ petition, firstly, in view of the failure on the part of the writ Appellant to annex a copy of the enquiry report which was construed to be a callous and careless inaction on her part and secondly, as the allegations against her as contained in the impugned decision (s) did not justify any interference. 4. Mr. Dasgupta has urged that as the inquiry preceding the report of the Inquiry Officer dated 5.4.2002 by no means is one contemplated under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (hereafter for short referred to as the Rules), the impugned order of dismissal dated 15.05.2002 is, per se, non est in law. According to the learned Counsel, the prescriptions of Rule 9 being mandatory in nature, no departure there from is permissible and as in the instant case a major penalty of dismissal has been meted out to the Appellant without conducting a disciplinary proceeding strictly in terms of the above legal provision, the learned Single Judge had erred in law and on facts in rejecting the writ petition. As no semblance of compliance of the peremptory safeguards engrafted in Rule 9 of the Rules is discernible in the fact finding inquiry that was conducted, the impugned decision (s) are liable to be annulled, he urged. 5. Mr. Baruah, in reply, has argued that the Appellant having remained unauthorizedly absent from duties from 24.08.1994, a notice dated 09.02.1995 was issued requiring her to join immediately and she having failed to do so, the said notice was published in the issue dated 12.11.1995 of the local daily, the 'Dainik Asom', asking her to report for duty within seven days, tailing which she would be dismissed from service. The learned Senior counsel has contended that as the writ Appellant inspite thereof did not report for duty, her services were rightly terminated by order dated 20.01.1996 of the Chief Executive Officer of the Board. Mr. The learned Senior counsel has contended that as the writ Appellant inspite thereof did not report for duty, her services were rightly terminated by order dated 20.01.1996 of the Chief Executive Officer of the Board. Mr. Baruah without prejudice to this, has urged that as the writ Appellant has participated in the inquiry that was undertaken in response to her representation against the earlier order of dismissal, she is now estopped from questioning the validity thereof. While asserting against any inviolable mandate of conducting a disciplinary proceeding under the Rules and/or personal hearing to the delinquent incumbent as an essential precondition for the validity of any penal measure of the kind taken against the Appellant, the learned Counsel has urged that having regard to her service profile, the decision of the concerned authority to discontinue her from service is unassailable. Mr. Baruah has maintained that as the Appellant's conduct demonstrates deliberate negligence to duty, indisciplined outlook and irresponsible demeanour projecting her to be an incorrigible personality, this Court in the exercise of its power of judicial review would not interfere with the determination made by the learned Single Judge. 6. We have extended our thoughtful consideration to the materials on record as well as the arguments advanced. When queried by this Court, the learned Counsel for the parties, in unison, have submitted that the Rules have been adopted by the Board and are, therefore, applicable to its employees. The orders dated 20.01.1996 and 15.05.2002 of the Chief Executive Officer of the Board are of removal/dismissal of the Appellant from service. The narrations contained therein also proclaim that the said step has been taken by way of a disciplinary measure against the Appellant for her unauthorized absence for an unduly long period. The penalties of removal and dismissal of service are amongst those catalogued in Rule 7 of the Rules. Rule 9 mandates that no order imposing on a Government servant, any of the penalties specified in Rule 7 shall be passed, except after an inquiry held in the manner provided therein. In other words, a conjoint reading of Rule 7 and 9 testifies that neither the penalty of removal nor that of dismissal can be imposed on the Appellant without an inquiry as contemplated and obligated under Rule 9 of the Rules. 7. In other words, a conjoint reading of Rule 7 and 9 testifies that neither the penalty of removal nor that of dismissal can be imposed on the Appellant without an inquiry as contemplated and obligated under Rule 9 of the Rules. 7. The learned Counsel for the Board inspite of repeated queries could not produce the notice dated 09.02.1995 said to have been issued to the Appellant. 8. The copy of the notice published in the issue dated 12.11.1995 of the daily, Dainik Asom has also not been laid before us for perusal. Admittedly, in response to the representation submitted by the Appellant against the order dated 20.01.1996 removing her from service, an inquiry had been ordered and conducted, following which a report dated 05.04.2002 was submitted. The Appellant does not deny her participation in the said inquiry. Neither the relevant official records have been placed before this Court to ascertain as to whether the inquiry had been conducted in terms of Rule 9 nor does the inquiry report dated 05.04.2002 asserts that it had been so undertaken. 9. On the other hand, a plain perusal of the said report demonstrates that the obligatory procedural safeguards were departed from and the fundamental principles governing adduction of evidence to be cognizable in law, had not been complied with. The Appellant's plea of not being served with a memorandum of charges and denial of defence assistant has remained unrefuted. To the contrary, the Board's justification appears to be that a departmental proceeding under Rule 9 or a personal hearing to the Appellant is not an imperative pre-requisite to validate the order of her removal/dismissal from service. Its emphasis has been on the alleged persistent failure on the part of the Appellant to maintain devotion to duty and habitual absenteeism rendering her unsuitable for retention in service. Having regard to the mandatory enjoinment of the Rules as noticed hereinabove and the inexplicable failure on the part of the Respondent Board to comply therewith, we are of the unhesitant opinion that the impugned order of dismissal dated 15.05.2002 cannot be sustained. By the analogy of reasonings, the order dated 20.01.1996 of removing the writ Appellant from service is also not tenable. Viewed from the above perspective, we regret our inability to agree with the findings of the learned Single Judge. 10. The appeal is thus allowed. By the analogy of reasonings, the order dated 20.01.1996 of removing the writ Appellant from service is also not tenable. Viewed from the above perspective, we regret our inability to agree with the findings of the learned Single Judge. 10. The appeal is thus allowed. The impugned judgment and order dated 25.04.2007 passed in W.P. (C) No. 5785/2003 is set aside. To reiterate the orders dated 20.01.1996 and 15.05.2002 of the Chief Executive Officer of the Board are also interfered with. The Respondent Board, however, having regard to the allegations levelled against the Appellant is left at liberty to take appropriate action against the Appellant strictly in accordance with law. We make it clear that by this determination we have not commented on the merit of the charges imputed against the Appellant and it would be upto the Board to take a necessary decision in this regard. No costs. Appeal allowed.