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2012 DIGILAW 1058 (GAU)

Kujendra Doley v. State of Assam

2012-09-06

BIPLAB KUMAR SHARMA

body2012
JUDGMENT Sharma, J. 1. Heard Mr. D.K. Mishra, learned senior counsel assisted by Mr. J. Chutia, Learned Counsel for the petitioner as well as Dr. B. Ahmed, learned Standing Counsel, Irrigation Department. I have also heard Ms. B. Dutta, learned State Counsel representing Panchayat and Rural Development Department. The petitioner, presently serving as additional Chief Engineer in the Irrigation Department, is aggrieved by Annexure-11 order dated 13.8.2010, by which the disciplinary authority has ordered for a further enquiry in reference to para 6.18.1.(2) of Chapter VI of the Manual of Departmental Proceeding. For a ready reference, the impugned order is quoted below :- GOVERNMENT OF ASSAM PANYCHAYAT & RURAL DEVELOPMENT DEPARTMENT DISPUR :::: GUWAHATI No. RDD 329/2005/278 Dated, the 13th August, 2010 ORDER Whereas departmental proceeding was drawn against Sri Kujendra Doley, the then Executive Engineer, District Rural Development Agency, Dhemaji and show cause notice was issued vide No. RDD 329/2005/47 dtd. 12.4.2006 on charges of dereliction of duties, falsification of records, misappropriation of govt. money. The written statement of defence was submitted by the Delinquent Officer vide his letter No. TD 17/EE/P/06-07/7 dtd. 29.7.2006. 2) Whereas the reply of the Charged Officer was not found satisfactory against the charges. The disciplinary authority who is also the Appointing Authority had decided to enquire by way of departmental proceedings by appointing the State Enquiry officer, Assam as Enquiry Officer vide Notification No. RDD 329/2005/143 dtd. 31.5.2007 and Presenting Officer vide No. RDD 329/2005/143 dtd. 31.5.2007. 3) Whereas the Enquiry Officer has submitted his enquiry report vide No. ABE 2/2007/32 dtd. 9.6.2010. On perusal of the enquiry report received from the State Enquiry Officer (Enquiry Officer), it was found that the Enquiry Officer has not pointed out relevant facts and has submitted incomplete report. 4) For end of justice, the Governor of Assam is pleased to set aside the report of enquiry submitted by the State Enquiry Officer and to order further enquiry as per provision made under para 6.18.1.(2) in Chapter of the Manual of Departmental Proceedings. 5) Mrs. Aparana Dey, Joint Secretary, Panchayat &n Rural Development Department is appointed as the new Enquiry Officer. Further, the new Enquiry Officer besides the material on record will be at liberty to examine and call for further documents/take witnesses, if found essential during enquiry. Shri P.K. Choudhury, Supdt. Panchayat & Rural Development, (C) Branch is appointed as the presenting Officer. Aparana Dey, Joint Secretary, Panchayat &n Rural Development Department is appointed as the new Enquiry Officer. Further, the new Enquiry Officer besides the material on record will be at liberty to examine and call for further documents/take witnesses, if found essential during enquiry. Shri P.K. Choudhury, Supdt. Panchayat & Rural Development, (C) Branch is appointed as the presenting Officer. Sd/- A. Kumar Principal Secretary to the Govt. of Assam, Panchayat & Rural Development Department 2. The petitioner while was working as Executive Engineer, DRDA, Tinsukia, was served with the show cause notice dated 12.4.2006 under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 read with Article 311 of the Constitution of India. By the said charge sheet, five charges had been levelled against the petitioner. In due course, the departmental enquiry followed in respect of the charges and the Enquiry Officer by his letter dated 9.6.2010 (Annexure-9), addressed to the principal Secretary, Panchayat & Rural Development Department, submitted the enquiry report exonerating the petitioner from all the five charges with the following conclusion :- I basing on the above observations conclude that the charges framed against the Charged Officer could not be established beyond any reasonable doubt. Therefore, I recommend that the Charged Officer may be exonerated from all the charges and the departmental proceeding may be dropped. 3. On receipt of the enquiry report, the disciplinary authority having passed the above quoted Annexure-11 impugned order dated 13.8.2010, the petitioner has approached this Court assailing the legality and/or validity of the course of action adopted by the disciplinary authority as indicated in the said order. 4. Mr. D.K. Mishra, learned senior counsel for the petitioner submits that the provisions of Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 do not suggest the course of action as has been adopted by the disciplinary authority vide the impugned order dated 13.8.2010. As regards the provisions of para 6.18.1(2) of Chapter-VI of the Manual of Departmental Proceeding, he submits that the provisions contained in the manual cannot override the statutory provisions. He also submits that the said provision is applicable only in respect of any material irregularity in conducting the enquiry causing prejudice to the person charged. For a ready reference, the said provision i.e. para 6.18.1 is also quoted below :- 6.18.1. He also submits that the said provision is applicable only in respect of any material irregularity in conducting the enquiry causing prejudice to the person charged. For a ready reference, the said provision i.e. para 6.18.1 is also quoted below :- 6.18.1. - Where the Disciplinary Authority, on a contention raised by the person proceeded against or otherwise finds that any material irregularities have been committed and that they have caused or they may cause prejudice to the person charged or such irregularities are likely to vitiate the proceedings, it will consider - (1) Whether the whole enquiry should be sent aside and a fresh enquiry started denovo : or (2) Whether the enquiry be set aside from the stage of occurrence of the irregularity and it be ordered to be started afresh from that particular stage. 6.18.2 - As far as possible, where ends of justice can be served and so long as the person proceeded against is given reasonable opportunity of being heard, efforts should be made to resume the enquiry from the stage at which the irregularity occurred. 5. In support of the aforesaid submissions made by Mr. D.K. Mishra, learned Senior Counsel for the petitioner coupled with the submission that if the course of action suggested in the impugned order dated 13.8.2010 is upheld, the same would lead to a situation in which the enquiry proceeding would go on perpetually until the view of the Enquiring Authority is in accord with that of disciplinary authority, he has referred to the decision of the Apex Court reported in (2002) 10 SCC 471 (Union of India Vs. K.D. Pandey and Another). 6. Dr. B. Ahmed, learned Standing Counsel, Irrigation submits that it is within the competence and jurisdiction of the disciplinary authority to disagree with the findings of the enquiry Officer and to record its own findings. According to him, the impugned order dated 13.8.2010 is in that direction. Ms. B. Dutta, learned State Counsel has adopted the said argument of Dr. B. Ahmed. 7. I have given my anxious consideration to the submissions made by the Learned Counsel for the parties and have also gone through entire materials on record. 8. The impugned order dated 13.8.2010 has been noted above. The Enquiry Officer has exonerated the petitioner from all the five charges. B. Ahmed. 7. I have given my anxious consideration to the submissions made by the Learned Counsel for the parties and have also gone through entire materials on record. 8. The impugned order dated 13.8.2010 has been noted above. The Enquiry Officer has exonerated the petitioner from all the five charges. Under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964, on conclusion of the enquiry, the Enquiring Authority shall prepare a report of the enquiry recording his findings on which all the charges together with the reasons there for. Thereafter, the enquiry report is to be submitted to the disciplinary authority. Under Rule 9(9), the disciplinary authority is to consider the report of the enquiry and record his findings on each charges. Nowhere, in the said provisions, any power of the disciplinary authority is contemplated to set aside the enquiry report and then to order for further enquiry by appointing another Enquiry Officer. As has been held by the Apex Court in K.D. Pandey (Supra), if the impugned order is allowed to stand, the same would be that the enquiry against the petitioner can go on perpetually until the view of the Enquiry Officer is in accord with that of the disciplinary authority. In the said decision, the Supreme Court has held that such a course of action would an abuse of the process of law. 9. As regards the provision of para 6.18.1, apart from the fact that the same is not a statutory provision but only executive instruction, the same is also applicable only in case of any material irregularity in conducting the enquiry causing prejudice to the delinquent official. The said provision cannot override the statutory provision envisaged in the Assam Services (Discipline and Appeal) Rules, 1964. It is also not the case of the disciplinary authority that in the enquiry there was any material irregularity in conducting the enquiry and/or that the impugned action contemplated is to remove any prejudice caused to the petitioner. 10. For all the aforesaid reasons, I am inclined to accept the writ petition and accordingly, the impugned order dated 13.8.2010 stands set aside and quashed. The disciplinary authority may take appropriate decision on the basis of the enquiry report. 11. At this stage, Mr. D.K. Mishra, learned senior counsel for the petitioner submits that the writ petition is also structured on some other legal points. The disciplinary authority may take appropriate decision on the basis of the enquiry report. 11. At this stage, Mr. D.K. Mishra, learned senior counsel for the petitioner submits that the writ petition is also structured on some other legal points. However, in view of the above findings I am not inclined to go into those aspects. Writ petition is allowed to the extent indicated above, without however, any order as to costs. Petition allowed.