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2012 DIGILAW 604 (GAU)

Bhupati Ranjan Mudoi v. State of Assam

2012-05-21

BIPLAB KUMAR SHARMA

body2012
JUDGMENT B. K. Sharma, J. 1. Heard Mr. S.K. Medhi, learned counsel for the petitioner as well as Mr. Upadhya, learned State counsel. The petitioner presently serving as the Block Development Officer (BDO) in Pachim Nalbari Development Block, is aggrieved by Annexures-8 and 18 notifications dated 20.11.2010 and 20.11.2010 respectively. By the first notification, while providing that the petitioner would continue to hold the office of the BDO in the same capacity, it has further been provided that he would continue to do so without any financial power. By the second notification, a second enquiry officer has been appointed to enquire into the charges brought against the petitioner, such a course of action was adopted in view of the purported inconsistency in the report submitted by the earlier enquiry officer on conclusion of the enquiry. 2. The petitioner has also prayed for release of his salary for the period of 09.04.2008 to 04.05.2010. Another prayer made in this writ petition is to provide full salary in the revised scale of pay. The petitioner has also prayed for giving him full charge of the post being held by him. 3. Annexure-18 notification dated 20.11.2010 was been issued in reference to the departmental proceeding that was initiated against the petitioner vide memorandum dated 31.12.2009. It appears that the enquiry was concluded and the enquiry officer submitted his report. Being not satisfied with the said report, the Govt. of Assam in the Panchayat and Rural Development Department issued the notification dated 20.11.2010 appointing another enquiry officer to enquire into the charges on the ground of there being inconsistency in the report submitted on 06.10.2010 by the earlier enquiry officer. 4. Learned counsel for the petitioner submits that once the enquiry was concluded with furnishing of the report, the disciplinary authority could not have issued the impugned notification dated 20.11.2010 by appointing another enquiry officer to get the desired result. He also submits that such a course of action has been adopted by the disciplinary authority when it felt that the enquiry report was not favourable to it. In this connection, he has placed reliance on the decision of this Court reported in 2005 (3) GLT 457: Bidyut Buragohain Vs. State of Assam. 5. He also submits that such a course of action has been adopted by the disciplinary authority when it felt that the enquiry report was not favourable to it. In this connection, he has placed reliance on the decision of this Court reported in 2005 (3) GLT 457: Bidyut Buragohain Vs. State of Assam. 5. As regards the non-payment of the revised scale and non-release of the salary, learned counsel for the petitioner submits that there is no earthly reasons as to why the petitioner should be paid due salary in the revised scale of pay. According to him, such a course of action means exploitation of labour. 6. Mr. Upadhya, learned State counsel on the other hand submits that since the petitioner was earlier placed under suspension and the said period of suspension is yet to be regularised, he could not be paid the revised scale of pay as he did not cross the efficiency bar. According to him, the de novo enquiry ordered by the impugned notification dated 20.11.2010 is permissible as per the provisions of the Manual of the Departmental Proceeding. 7. I have considered the submissions made by the learned counsel for the parties and have also gone through the entire records. In the counter affidavit filed by the Govt. in the Panchayat and Rural Development Department through the Deputy Secretary on 08.08.2011, it was contended in paragraph-7 of the said affidavit that the petitioner was not allowed to handle the financial transactions since a departmental proceeding was pending against him. As regards the enquiry conducted against the petitioner, it has been stated that since the enquiry report of State Enquiry Officer was found incomplete and having inconsistence, further enquiry was ordered through another enquiry officer. In paragraph-14 of the said affidavit, it has been contended that since a departmental proceeding is pending against the petitioner, fixation of pay cannot be allowed to him. 8. The same very authority has filed another affidavit on 15.05.2012 reiterating the same stand. As regards the plea of the petitioner that he has not been provided with sitting arrangement in the office, it has been stated that a well furnished chamber with comfortable sitting arrangement have been provided to the petitioner. In paragraph-4 of the said affidavit, it has been stated that the petitioner was suspended in 1994 and reinstated in service on 28.07.1994. In paragraph-4 of the said affidavit, it has been stated that the petitioner was suspended in 1994 and reinstated in service on 28.07.1994. The said period having not been regularised, he could not be allowed to cross EB. Referring to second suspension on 27.07.1998 and reinstatement in service on 18.06.1999, it has been stated that since a departmental proceeding is still pending, the period cannot be regularised and consequently he cannot be paid his salary in the revised scale of pay. As regards the power to initiate fresh proceeding on conclusion of the earlier enquiry, it is stated that since the earlier enquiry report was found incomplete and inconsistent, further enquiry was ordered under the provision of Chapter VI, para 6.18.1(2) of the Manual of Departmental Proceeding. 9. For a ready reference, the aforesaid provision on the subject of fresh/further enquiry is reproduced 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 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 set aside and a fresh enquiry started de novo; 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. 8.18.2 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. 10. The aforesaid provision is applicable only when the disciplinary authority finds that any material irregularity has been committed and the same might cause prejudice to the persons charged or such irregularity are likely to vitiate the proceeding. It is only in such circumstances, it is to be considered as to whether the whole enquiry shall be set aside or fresh enquiry should be initiated de novo. 11. From the above, what is seen is that the aforesaid provision for fresh/further enquiry has been made to remove any prejudice caused to the officer against whom the proceeding is initiated. Even otherwise also, the said provision cannot override the provision of Assam Services (Discipline & Appeal) Rules, 1964. 11. From the above, what is seen is that the aforesaid provision for fresh/further enquiry has been made to remove any prejudice caused to the officer against whom the proceeding is initiated. Even otherwise also, the said provision cannot override the provision of Assam Services (Discipline & Appeal) Rules, 1964. Rule 9 of the said Rules laying down the detailed procedure for imposing penalties, provides that on the conclusion of the enquiry, the enquiring authority shall prepare the enquiry report and the disciplinary authority would consider the same towards recording its own findings on each charge. There is no provision for remanding the matter back to the enquiring authority, more particularly on the ground of there being inconsistencies in the report, as indicated in the impugned notification dated 20.22.2010 (Annexure-18). 12. There is also no indication in the impugned notification that the disciplinary authority considered the report in reference to the charges and came to any conclusion. Only finding recorded in the notification is that the report is incomplete and inconsistent. If the course of action adopted by the respondent/disciplinary authority by issuing the impugned notification is allowed to stand, same will cause serious prejudice to the delinquent officer. On each and every occasion it will be the tendency of the disciplinary authority to remand the matter back to another enquiry officer, if it finds that the enquiry report is not favourable to it. 13. In the instant case, the disciplinary authority after recording that there are inconsistencies in the report submitted by the enquiring authority on 06.10.2010, took recourse to the provision of the aforesaid Manual by appointing another enquiry officer to enquire into the charges, as if it is determined to get favourable report. 14. As regards the Annexure-8 notification dated 04.05.2010 by which the petitioner was directed to hold the post of BDO in the same capacity without financial power, as per the affidavit in opposition filed by the respondents, same was taken recourse to in view of the pendency of the departmental proceeding against the petitioner. In view of my opinion that the impugned Annexure-18 notification dated 20.11.2010 directing fresh enquiry against the petitioner is not sustainable in law, the authority will have to consider as to whether divesting the petitioner from the financial power and to be precise with the duties and functions attached to the post of BDO is still to continue or not. In view of my opinion that the impugned Annexure-18 notification dated 20.11.2010 directing fresh enquiry against the petitioner is not sustainable in law, the authority will have to consider as to whether divesting the petitioner from the financial power and to be precise with the duties and functions attached to the post of BDO is still to continue or not. 15. As regards the payment of salary for the period from 09.04.2008 to 04.05.2008, if the petitioner worked for the said period, the respondents cannot deny him salary for the said period. 16. If the petitioner was placed under suspension and thereafter reinstated in service, a duty was cast on the disciplinary authority to regularise the said period of suspension. Since the subsequent enquiry ordered by the notification dated 20.11.2010 has been interfered with, direction is issued to the disciplinary authority to pass appropriate order towards regularisation of the period of suspension. As regards the earlier period of suspension mentioned in the affidavit filed on 15.05.2012, there being no appropriate proceeding pertaining to the same, the authority shall now pass appropriate order regularising the period of suspension. 17. The writ petition is allowed by setting aside and quashing the impugned notification dated 20.11.2010 (Annexure-18). The respondents shall now pass appropriate orders in respect of regularisation of the periods of suspension of the petitioner and payment of salary for the said period, payment of revised pay and shall also consider as to whether in view of these developments the petitioner is entitled to get full charge of the post of BDO presently being held by him. The respondents shall pass appropriate orders consistently with the above directions and observations as expeditiously as possible, preferably on or before 30.06.2012. Writ petitioner is allowed. There shall be no order as to costs. Petition allowed.