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2013 DIGILAW 261 (GAU)

Moneswari Devi v. State of Assam & Ors.

2013-04-23

A.K.GOSWAMI

body2013
Heard Mr. G. Uzir, learned counsel for the petitioner. Heard also Mr. U.K. Goswami, learned Standing Counsel, Education Department. 2. By this writ petition, the writ petitioner challenges the order dated 31.10.2012, issued by the Director of Secondary Education, Assam, Guwahati (Annexure- K), whereby and whereunder the petitioner was imposed penalty of “deduction to a lower post from Headmaster (Regular) to Assistant Teacher with immediate effect”. The said order is quoted in its entirety: ORDER Smt. Moneswar Devi, Head Mistress of Jugal High School, Kawaimari in the district of Sonitpur was placed under suspension vide the order No. GBEST/Allegation/04/2012/04 dated 13.2.2012. After suspension, show cause notice was served upon the Government servant vide this office letter No. GB/EST/Allegation/ 4/2012/5, Dated 28.5.2012 The following charges were framed, against her. While she was the Head Mistress of Jugal High School, she received 101 quaintal, 92 kg and 30 quintal Rice for the month of October 2011 and December, 2011 respectively allotted for Mid-Day-Meal. Out of the above quantity she kept 72 begs of Mid-Day-Meal rice in the godown of Sri Ramesh Saikia, fare price shop keeper near by the School. She was charged with misappropriation of rice under Mid-Day-Meal Scheme. The Head Mistress submitted written explanation on 12.4.2012. Perused the reply to the show-cause notice submitted by the delinquent Government Servant. In the explanation she denied the charges. She was heard personally on 14.8.2012. In her testimony she admits having kept 75 bags of rice in the godown of Sri Ramesh Saikia, a mill owner on 9.12.2011. She further stated that the rice was kept in the mill of Sri Ramesh Saikia till 3.2.2012. On 3.2.2012 there was public gathering and there was noisy scene and police came, the rice was brought to the School. In this regard a police case was also registered being No. Thalamara Police Station Case No. 6/2012, under section 379/411, IPC and, in the case Smt. Moneswari Devi had to obtain pre-arrest bail. From the enquiry and documents on records I am of the opinion that Smt. Moneswari Devi kept the rice which was received under Mid-Day-Meal Scheme in the private godown of Sri Ramesh Saikia with an intention to misappropriate the same. I, therefore, hold that the charges framed, stand proved and Smt. Moneswari Devi is to be punished under the Assam Service (Discipline and Appeal) Rules, 1964. I, therefore, hold that the charges framed, stand proved and Smt. Moneswari Devi is to be punished under the Assam Service (Discipline and Appeal) Rules, 1964. Under rule 7 of the said Rules, the following penalty is imposed on the Delinquent Government Servant of “deduction to a lower post from, Headmaster (Regular) to Assistant Teacher with immediate effect”. The period spent on suspension shall not be treated as on duty. The allowances received as subsistence allowance will be her admissible allowances during suspension. Suspension is revoked. She will join as an Assistant Teacher. With this, the Departmental Proceeding is closed. Sd/-Sri B.I. Sarma, ACS . Director of Secondary Education Assam, Kahilpara, Guwahati 19 Dated, the 31st October, 2012. 3. Rule 7 provides for, among other, penalty of reduction to a lower service, grade or post and it is obvious the word ‘deduction’ in respect of penalty imposed in the above order should have read as ‘reduction’. 4. Mr. G. Uzir, learned counsel for the petitioner, submits that the impugned order imposing penalty was passed in gross violation of rule, 9 of the Assam Service (Discipline and Appeal) Rules, 1964 (‘the Rules’), inasmuch as, no enquiry was conducted, in the case of the petitioner. It is submitted by him that .after written statement was filed by the petitioner, denying the allegations contained in the charge sheet, no Enquiry Officer was appointed. It is submitted by Mr, G. Uzir that the petitioner had submitted show cause reply to the charges on 2.7.2012, although in the said written statement, it was not specifically mentioned that the same is in reply to the show-cause notice. Consequently, there is no examination of witnesses to prove the charges. While conceding that the petitioner was called for personal hearing before the Director of Secondary Education, Assam,, the, same cannot .substitute the procedure prescribed under the Rules which require, among other; appointment of an Enquiry Officer, and leading of evidence. He contends that the impugned order passed against the petitioner is also violative of the principles of natural justice. 5. Mr. U.K. Goswami, learned Standing Counsel, Education Department, has produced the records for perusal of this court. He fairly submits that the records do not disclose appointment of any Enquiry Officer. He contends that the impugned order passed against the petitioner is also violative of the principles of natural justice. 5. Mr. U.K. Goswami, learned Standing Counsel, Education Department, has produced the records for perusal of this court. He fairly submits that the records do not disclose appointment of any Enquiry Officer. However, he contends that in the circumstances of .the case, personal hearing afforded to the petitioner, satisfies the requirement of principles of natural justice and, therefore, the order does not call for any interference at the hands of this court. 6. I have perused the materials on record and considered the submissions advanced by the learned counsel for the parties. I have also perused the records produced by Mr. Goswami. 7. It appears that the petitioner also submitted a written explanation on 12.4.2012. Perusal of the impugned order shows that though the said show cause reply was beyond the time fixed, it was also taken into consideration, as in the order, it has been stated that the reply to the show-cause notice submitted by the delinquent was also perused. It is also noted in the order that the petitioner had denied the charges levelled against her in the explanation. 8. Rule 9(4) to rule 9(7) of the Rules are relevant and the same are reproduced hereinbelow: “4. On receipt of the written statement of defence, or if no such statement is received within the time specified the Disciplinary Authority may itself inquire into such of the charge as are not admitted or, if it considers it necessary so to do, appoint for the purpose a Board of Inquiry or an Inquiring Officer”. “5. The Disciplinary Authority may nominate any person to present the case in support of the charges (‘the inquiry authority”). The Government servant may present his case with the assistance of any other Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case so permits”. “6. The Enquiry Authority shall, in the course of the enquiry consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. “6. The Enquiry Authority shall, in the course of the enquiry consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The Government servant shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person and to adduce documentary and oral evidence in his defence. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witnesses examined in his defence. If the Inquiry Authority declines to examine any witness or to admit .any document in evidence on the ground that his evidence or such document is hot relevant or material, it shall, record its reasons in writing”. “7. At the conclusion of the inquiry the inquiring Authority shall prepare a report of the enquiry, recording its findings on each of the charges together with reasons, therefore.” 9. If the show cause reply dated 2.7.2012 was taken on record, and it having been also noted that the charges were denied, in terms of rule 4 of the Rules, it was incumbent on the part of the Disciplinary Authority to have appointed an Enquiry Officer to go into the charges or to have itself inquired into the charges. Admittedly, no Enquiry Officer was appointed. No inquiry was conducted by the Disciplinary Authority either. No Presenting Officer was also appointed. Thus, the entire proceeding was conducted in violation of rules 9(5), (6) and (7) of the Rules. It is no doubt true that before the charges were framed, a preliminary enquiry was conducted, based on which a report was also submitted by the Inspector of Schools, Sonitpur. Such preliminary enquiry report cannot be equated with the enquiry report contemplated in a disciplinary proceeding. In absence of any enquiry subsequent to the framing of charges, the opinion recorded by the Director of Secondary Education, Assam that, from the enquiry and documents on records, he was of the opinion that the petitioner had an intention to misappropriate rice of Mid-Day-Meal Scheme is wholly misconceived. 10. In Madhab Chandra Das v. The State of Assam and Ors., (1987) 2 GLR 210, a Division Bench of this court had held entire provision of rule 9 of the Rules to be mandatory. 10. In Madhab Chandra Das v. The State of Assam and Ors., (1987) 2 GLR 210, a Division Bench of this court had held entire provision of rule 9 of the Rules to be mandatory. It was further held that any violation thereof shall amount to violation of principles of natural justice vitiating of the entire disciplinary proceeding. 11. In view of the above, the order dated 31.10.2012, is interfered with and penalty imposed is set aside. The revocation of suspension order by the said order dated 31.10.2012, is, however, not interfered with. Accordingly, the authorities will take appropriate steps in the light of the order passed in this proceeding with regard to the posting of the petitioner. 12. Needles to say, it would be open for the authorities to proceed with the departmental proceeding initiated vide charge sheet dated 28.5.2012 in accordance with law, if so advised. 13. The writ petition is allowed as indicated above. No cost. __________________