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2013 DIGILAW 755 (GAU)

Anil Kumar Barua v. State of Assam

2013-10-31

TINLIANTHANG VAIPHEI

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JUDGMENT Tinlianthang Vaiphei, J. 1. In this writ petition, the petitioner is questioning the legality of the disciplinary proceedings launched against him and of the order dated 3-1-2008 issued by the Commissioner-cum-Secretary, Government of Assam, Secretariat Administration (Estt.) (respondent 2) imposing a penalty of reduction of rank in the post of Junior Administrative Assistant and other consequential orders. The facts of the case, as projected by the petitioner, may be briefly referred to at the outset. The petitioner was initially appointed as Lower Division Assistant (which is now re-designated as Junior Administrative Assistant or "JAA" for short) whereafter he was promoted to the post of Upper Divisional Assistant (now re-designated as Senior Administrative Assistant or "SAA" for short). While he was serving as SAA in the Department of Implementation of Assam Accords, Assam Secretariat, the Chief Secretary of Assam served a show cause notice bearing dated 22-7-2003 upon him along with statements of allegations charging him with entering into conspiracy, defrauding and misleading the Government by incorporating misleading notes, pasting the original one in the file and incorporating the name of a firm with vested interest in contravention of Rule 3(i)(i) and (i) of the Assam Civil Service (Conduct) Rules, 1963. It is the case of the petitioner that clause 6 of the statement of allegations itself would indicate that the disciplinary proceedings were initiated against him with a pre-determined mind and with an intention to hold him guilty of the charges leveled against him. Anyway, the petitioner submitted his written statement of defence on 12-9-2003 denying all the charges leveled against him. He clarified that from 19-12-2001 to 3-1-2002, while he was on earned leave, on the telephonic request of Mr. Gagan Patar, the then Under Secretary to the Government of Assam, Home (A) Department, he visited his office chamber on 27-12-2001 at about 11.30 AM where he prepared a draft sanctioning letter with a note on the note sheet as per his direction and dictation but without putting his signature anywhere as he was on leave on that day. 2. The petitioner also stated that he was preparing all these letters and notes like a copyist only as he had to obey the instruction of his superior officer in the Department under whom he was working. 2. The petitioner also stated that he was preparing all these letters and notes like a copyist only as he had to obey the instruction of his superior officer in the Department under whom he was working. According to the petitioner, the five charges leveled against him were similar, but the disciplinary authority unnecessarily divided the charge into five charges by making repetitions without any substantial difference. Apparently, dissatisfied with the explanation of the petitioner, the respondent No. 1 vide his letter dated 27-10-2003 launched the departmental enquiry against the petitioner by appointing Shri S.C. Bhuyan, Joint Secretary to the Government of Assam as the Enquiry Officer to conduct the enquiry and Mrs. Aruna Sonowal, Deputy Secretary to the Government of Assam, Secretariat Administration (Estt.) Department as the Presenting Officer. In the course of enquiry, only one witness, namely, the said Gagan Patar, was examined but the remaining 4 cited witnesses were never examined by the Enquiry Officer: the petitioner examined himself as the defence witness. It is the case of the petitioner that ever since the date of his appearance before the Enquiry Officer on 27-10-2003, he was no more aware of the progress of the enquiry as nothing was intimated to him for the preceding three and half years, which led him to believe that the proceedings had been dropped. No enquiry report was furnished to him. However, much to his consternation, the order dated 2-8-2007 was served upon him after a gap of three and half years by which he was found guilty of all the charges brought against him and was awarded the penalty of reducing his rank to the level of JAA. Consequently, the petitioner was transferred as JAA and posted to Public Enterprises Department. 3. Aggrieved by this, the petitioner moved this Court in W.P. (C) No. 4095 of 2007 on the ground, among others, that non-furnishing of the enquiry report before imposition of the impugned penalty had caused grave prejudice to him. When it was admitted by the State-respondents that the enquiry report was never supplied to the petitioner prior to imposition of the impugned penalty, this Court by the judgment dated 17-8-2007 quashed the impugned order of penalty dated 2-8-2007 as well as his transfer by giving liberty to the State-respondents to proceed with the enquiry afresh, if so advised. When it was admitted by the State-respondents that the enquiry report was never supplied to the petitioner prior to imposition of the impugned penalty, this Court by the judgment dated 17-8-2007 quashed the impugned order of penalty dated 2-8-2007 as well as his transfer by giving liberty to the State-respondents to proceed with the enquiry afresh, if so advised. In compliance with the judgment of this Court, the State-respondents furnished a copy of the enquiry report to the petitioner by giving him seven days' time to submit his representation. The petitioner thereafter submitted his representation dated 5-11-2007 challenging the findings of the enquiry officer as well as the procedure adopted by him, particularly, his omission to examine the most vital cited witnesses and of the omission to exhibit the listed documents in the course of the enquiry. The respondent No. 2 again imposed the same penalty of reduction in rank of the petitioner to JAA permanently vide his order dated 3-1-2008. Consequent upon the order of penalty, another order dated 4-1-2008 was issued by the Deputy Secretary to the Government of Assam, Secretariat Administration (Estt.) Department posting him as JAA in the Department of Science and Technology. The petitioner thereafter preferred a departmental appeal against the order of penalty and his consequential transfer before the respondent No. 1 on 9-1-2008. These are the sum and substance of the case of the petitioner. He is now seeking the intervention of this Court to redress his grievances. 4. The writ petition is opposed by the state-respondents, who, through the Deputy Secretary to the Government of Assam in the Department of Secretariat Administration (Estt), filed their affidavit-in-opposition. The main case of the answering respondents is that though the petitioner denied all the charges leveled against him, he confessed his guilt in the first paragraph of his written statement of defence dated 12-9-2003: the charges leveled against him, therefore, stand proved during enquiry. The impugned penalty of reduction of rank was accordingly imposed upon him. According to the State-respondents, the petitioner was supplied with a copy of the enquiry report and all relevant documents, was requested to submit his representation against the enquiry report, which were done in compliance with the order of this Court. His representation dated 5-11-2007 was carefully examined, and it has been found that he fully participated in the enquiry proceedings and was given full opportunity to submit his defence. His representation dated 5-11-2007 was carefully examined, and it has been found that he fully participated in the enquiry proceedings and was given full opportunity to submit his defence. The Enquiry Officer submitted his report after appreciating the documents and evidence of witnesses. The main substance of the charge made against the petitioner is that he prepared the draft and incorporated the name "M/S Motorola India Ltd." in the draft though he knew that the same was not mentioned in the original proposal. According to the answering respondents, the petitioner had taken the stance that he pasted the note sheet for inclusion of the name of the said firm, which was done on the advice of the said Under Secretary, but he could not prove the same. As he could not prove his case, his representation was rejected. The Enquiry Officer, on conclusion of the enquiry, found all the charges against the petitioner proved. 5. The Disciplinary Authority accepted the enquiry report and held that though the petitioner was on earned leave w.e.f. 19-12-2001 to 3-1-2002, he admitted that he, while he was on leave on 27-12-2001, put up a file No. HMA 193/2001/Pt giving a note with a draft sanctioning letter, and he, on receipt of the approval on the draft, deliberately pasted a note favouring "M/S Motorola India Ltd." on the earlier note though there was no mention about the name of such firm in the proposal of the Director General of Police, Assam. Nor was the name of the said firm mentioned in the endorsement of the Finance Department. According to the answering respondents, the petitioner confessed that he had pasted the note for inclusion of the name of such firm, but took the stance that he had done so on the advice of the said Under Secretary. He could not, however, prove the stance taken by him. Even if it is assumed that the said Under Secretary did so on the instruction of the said Under Secretary, a even subordinate employee like the petitioner was not, ipso facto, bound to follow such illegal instruction. There is no infirmity in the impugned order of penalty as it does not suffer from procedural impropriety or illegality. Even if it is assumed that the said Under Secretary did so on the instruction of the said Under Secretary, a even subordinate employee like the petitioner was not, ipso facto, bound to follow such illegal instruction. There is no infirmity in the impugned order of penalty as it does not suffer from procedural impropriety or illegality. He was admittedly transferred to and posted as JAA on 4-1-2008 on administrative convenience and in the interest of public service as there were two vacant posts in Science & Technology Department, which was run with only two JAAs whereas there were twelve JAAs in position in the Irrigation Department at that time. No hardship is caused to the petitioner by reason of such transfer as all these departments are located in the same Secretariat Campus. According to the answering respondents, the petitioner was given ample opportunities to defend himself as per rules during the enquiry, and, as such, there was no violation of principles of natural justice or Article 311 of the Constitution. The writ petition is devoid of merit and is, therefore, liable to be dismissed. 6. It is the contention of Mr. D.K. Sharma, the learned counsel for the petitioner, that the impugned order is a cryptic order and does not disclose anything about the evidence and witnesses on the basis whereof the findings were arrived at by the disciplinary authority: there is no finding on the charges leveled against him, and the Enquiry Officer proceeded with the enquiry to save the said Gagan Patar, Under Secretary, Home (A) Department. The learned counsel for the petitioner submits that the Enquiry Officer intentionally and deliberately omitted to examine the most important and vital witnesses such as Shri Ramani Das, UDA of Assam Police Headquarters, Shriu Prabin Chandra Das, the then LDA of Home (A) Department, Shri Abinash Hazarika, Office Superintendent, Home (A) Department, Shri Sadananda Bordoloi, Senior Finance & Accounts Officer, Home & Political Department: finding the petitioner of the charges levelled against him without examining these vital witnesses is perverse and cannot be sustained in law. It is further submitted by the learned counsel for the petitioner that the disciplinary authority has taken a discriminatory treatment against the petitioner by imposing a penalty of reduction in rank upon him while taking no action against the other similarly situated officials, though there has been definite finding against some of those officials. It is further submitted by the learned counsel for the petitioner that the disciplinary authority has taken a discriminatory treatment against the petitioner by imposing a penalty of reduction in rank upon him while taking no action against the other similarly situated officials, though there has been definite finding against some of those officials. The learned counsel, therefore, vehemently submits that the impugned order suffers from the vice of non-application of mind, hostile discrimination against the petitioner and of illegality and arbitrariness. 7. Ms. H.M. Phukan, the learned State counsel, on the other hand, supports the impugned order and contends that the same is based on evidence adduced during the enquiry and does not suffer from any infirmity calling for the interference of this Court. She, therefore, strenuously urges this Court to dismiss the writ petition, which is bereft of merit. 8. I have given my thoughtful consideration to the submissions advanced by the learned counsel appearing for the rival parties. I have also carefully perused the impugned order together with the enquiry report, which is at Annexure-O to the writ petition, and am of firm view that the contentions of the learned counsel for the petitioner have no substance. In the first place, his contention that the vital witnesses were not examined by the enquiry officer is not borne out by the record. In the enquiry report, it is seen that the Enquiry Officer did examine the said Ramani Das, Shri Prabin C. Das, Shri Abinash Hazarika and Sadananda Bordoloi contrary to the claim made by the petitioner. These witnesses have clearly implicated the petitioner in the case. In fact, all of them categorically stated before the Enquiry Officer that the petitioner prepared the draft sanction letter and pasted the earlier note in the note sheet on the direction of the said Under Secretary on 26-12-2001 when he was on earned leave. The following are the findings of the enquiry officer:-- ...From the above facts and circumstances and from the statements of several officials it is revealed that Home(A) Deptt. After receiving the proposal from the police Headquarters, it was processed by dealing assistant Sri Anil Baruah under File No. HMA/193/2001/pt. After scrutiny and departmental procedure the file was sent to the Finance Department for concurrence on 26-11-2001. After necessary scrutiny, Finance Department gave the concurrence on 21-12-2001. After receiving the proposal from the police Headquarters, it was processed by dealing assistant Sri Anil Baruah under File No. HMA/193/2001/pt. After scrutiny and departmental procedure the file was sent to the Finance Department for concurrence on 26-11-2001. After necessary scrutiny, Finance Department gave the concurrence on 21-12-2001. On 26-12-2001 the file was processed by LDA Probin Das but the note on the note sheet of the file was written by UDA Anil Baruah which was without the cut piece of note sheet pasting i.e. without incorporating the name of M/S Motorola in the note sheet. 9. The draft was prepared on 26-12-2001 by Sri Anil Baruah incorporating the name of M/S Motorola and the same draft was forwarded to Under Secy. Sri Patar along with the file notes through A. Hazarika office Suptd. Under Secy. Sri Patar signed the draft and forwarded the note and draft to Sr. F.A. on 26-12-2001, Sr. F.A. vetted the draft and note and signed the draft on 27-12-2001. Accordingly this was typed by typist Sri Sarbeshwar Kakati as per draft given to him for typing and after signature of Under Secy. Sri Patar, it was dispatched on the same day. 10. It is revealed from the statement of Sri Patar and Sr. F.A. that Sri Anil Baruah after despatch of the sanctioning letter i.e. after 27-12-2001 pasted a cut piece of the note sheet on Sl. 11 of the note sheet of file No. HMA/193/2001/PT giving an impression to the contents of the note sheet that the incorporation of the name M/S Motorola had the special concurrence of the Joint Secy. Finance. But in reality which is not so. The handwriting on the cut piece pasted note sheet and that below the pasted note sheet has been verified on FSL as that of UDA Anil Baruah. 11. Though as per statement of Sri Patar, he was ignorant of the fact that the name M/S Motorola was incorporated in the draft but since he signed both the handwritten & typed draft it is presumed that the whole act happened with his connivance. So he is responsible. 12. Sri Abinash Hazarika being the office Supdt. Of Home(A) Deptt. every draft passed through him before the signature of Under Secy. It was his duty to thoroughly go through the contents/details of the draft and then put up since it involves large financial implication. So he is responsible. 12. Sri Abinash Hazarika being the office Supdt. Of Home(A) Deptt. every draft passed through him before the signature of Under Secy. It was his duty to thoroughly go through the contents/details of the draft and then put up since it involves large financial implication. But is evident that this was not done. So it is presumed that even Sri Abinash Hazarika is also responsible. 13. UDA Anil Baruah is mainly responsible because it is he who incorporated the name of M/S Motorola in the draft, and also pasted a cut piece note on the note sheet (whether he was directed by his superior officer or not). It can easily be presumed that since the file No. HMA/193/2001/PT was in his custody, he could have easily done the forgery of pasting a note sheet only after despatch of the typed (final) sanction order. 14. The fact of Deputy Superintendent of Police, APRO Shri Chittaranjan Ojha carrying personally the original sanction order addressed to the Director General of Police, Assam shows his and his organization's undue interest in the inclusion of the name for M/s. Motorola in the sanction order and as such it was an overt act in pursuance of a conspiracy. 15. To sum up, it is established that the act of inclusion of the name of M/s. Motorola Ltd. in the sanction order was done as per a conspiracy made by (1) Shri Anil Baruah (2) Shri Abinash Hazarika (3) Shri Gogan Chandra Patar and (4) Shri Chittranjan Ojha with a vested interest. 9. The admissions made by the petitioner that it was he who, on the instruction of Shri GC Patar, Under Secretary, Home (A), prepared the draft sanction order and pasted the cut note over the original note sheet to include M/S Motorola India Ltd. in the sanction order, which was not there in the proposal of the Home Department or in the concurrence given by the Finance Department, are not disputed. Moreover, the fact that these exercises had been done by him when he was on earned leave is also an undisputed fact. Therefore, the Enquiry Officer, has correctly held that the petitioner is guilty of the charges leveled against him, which does not warrant my interference as they are based on evidence. Moreover, the fact that these exercises had been done by him when he was on earned leave is also an undisputed fact. Therefore, the Enquiry Officer, has correctly held that the petitioner is guilty of the charges leveled against him, which does not warrant my interference as they are based on evidence. However, no action has been taken against the remaining officials including the said GC Patar, against whom there are similar evidences. The fact that the petitioner was committing the misconduct in question on the instruction of the said Gagan Chandra Patar, who was the then Under Secretary, Home (A) Department and was his superior officer, cannot be lost sight of while considering the quantum of penalty to be imposed upon him. That apart, there is no evidence to show that any action has been taken against other delinquent officials who have been found to be equally responsible for the delinquency. Under the circumstances, I am of the view that the penalty imposed upon the petitioner is shocking and relatively excessive and disproportionate to the misconduct proved against him: a lesser penalty is called for. In my opinion, the petitioner has been subjected to hostile discrimination without any rhyme or reason. I am fortified in my view by the decision of the Apex Court in Chandra Vilash Rai v. State of Punjab and others, (2003) 11 SCC 741. This is what it said: 3. Having examined the nature of charges alleged and proved against the two delinquents, we cannot but observe that the charges are serious, more particularly, since they relate to the affairs of a cooperative bank. But at the same time, it cannot be disputed that these delinquents have rendered services in the society for more than 20 years. It also transpires that the so-ca led delinquency had not been committed on their own but at the behest of the Board of Directors, though in law such action would not exonerate the delinquents from the liabilities which they would incur for such i legalities and irregularities. It also transpires that the so-ca led delinquency had not been committed on their own but at the behest of the Board of Directors, though in law such action would not exonerate the delinquents from the liabilities which they would incur for such i legalities and irregularities. In the aforesaid premises, we think it appropriate that ends of justice will be met if we alter the punishment of dismissal to one of premature retirement, as provided in the Staff Regulations of the Bank, which appear to have been framed by the Board in its resolution dated 12-3-1985, which punishment also is a major punishment and we accordingly so direct. If the delinquents are entitled to any retirement benefits on the basis of such premature retirement, those may be given to them. These appeals are disposed of accordingly. The off-shoot of the foregoing discussion is that this writ petition partly succeeds. The respondent authorities are, therefore, directed to reconsider the penalty of reduction in rank imposed upon the petitioner and modify the penalty to one which is lesser than that of reduction in rank. The exercise shall be carried out by them within a period of two months from the date of receipt of this judgment. Back wages due to him by reason of modification of the impugned penalty shall also be paid to the petitioner within the next two months. The impugned order dated 3-1-2008 (Annexure-1 to the writ petition) shall, accordingly, stand modified in the manner and to the extent indicated above. No costs.