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2014 DIGILAW 717 (GAU)

Umesh Ch Sarma v. State of Assam

2014-07-17

BIPLAB KUMAR SHARMA

body2014
JUDGMENT Biplab Kumar Sharma, J. 1. Both the writ petitions by and between the same parties have been heard analogously and are being disposed of by this common judgment and order. While in the 1st writ petition being WP(C) No. 67/2013, the petitioner has challenged the Annexure-6 order of the Director of Secondary Education, Assam, placing him under suspension with a further prayer to release his pay and allowances w.e.f. 23.03.2012, in the 2nd writ petition being WP(C) No. 568/2014, the challenge is to the order dated 23.03.2012 (Annexure-11), by which the petitioner has been imposed with the penalty of stoppage of two annual increment with cumulative effect. Be it stated here that by the said order of penalty, the petitioner with the imposition of the said penalty was shown reinstated in service. On the other hand, it is the case of the petitioner that he was never furnished with the copy of the order dated 23.03.2012 and it was only after filing of the 1st writ petition, he was made aware of the said order. In the meantime, the petitioner retired from service on attaining the age of superannuation on 31.12.2012. 2. According to the petitioner, he was placed under suspension without any valid reason and the departmental proceeding was also initiated without there being any material against him. Further grievance of the petitioner is that although the impugned Annexure-11 order dated 23.03.2012 was shown to have been issued, but the same having not been served on the petitioner, irrespective of the penalty imposed on him, he lost his valuable right of reinstatement in service and continuity till he attained the age of superannuation on 31.12.2012. 3. I have heard Mr. U.K. Nair, learned counsel for the petitioner and Mr. J. Abedin, learned Standing Counsel, Education Department. I have also heard Mr. S.K. Talukdar, learned counsel representing the respondent No. 3 in the 1st writ petition. I have also gone through the entire materials on record including the file containing the records that has been produced by Mr. J. Abedin, learned Standing Counsel, Education Department. 4. Since the petitioner has already retired from service on attaining the age of superannuation w.e.f. 31.12.2012 coupled with the fact that the eventual challenge of the petitioner is the order of penalty, we need not deal with the legality or otherwise of the order by which he was placed under suspension. J. Abedin, learned Standing Counsel, Education Department. 4. Since the petitioner has already retired from service on attaining the age of superannuation w.e.f. 31.12.2012 coupled with the fact that the eventual challenge of the petitioner is the order of penalty, we need not deal with the legality or otherwise of the order by which he was placed under suspension. Suffice is to say that the petitioner was placed under suspension in contemplation of a departmental proceeding. Thereafter he was issued with the Annexure-5 charge sheet dated 20.12.2011 leveling the following charges:- 1. That while, you were serving as i/c. Principal of Night H.S. School, Guwahati as senior most Subject Teacher of the School as per this office order No. GB-EST/Aptt/29/97/8, dtd. 28.10.1997, being custodian of records, you have intentionally manipulated the Ad-hoc appointment order issued on 03.12.1993 from this Directorate as Subject Teacher in Sanskrit showing a fabricated regularization order without selection as required under rules for your pecuniary gain in service career. The record further reveals that you have joined in service on 19.12.1975 as Asstt. Teacher in the erstwhile Night High School, Guwahati (Now Night H.S. School) and continued till 1993 and thereafter on up-gradation of the High School into a Higher Secondary School you prepared to join as Subject Teacher in Sanskrit on Ad-hoc basis with further extension of the term of Ad-hoc appointment but no regularization order was issued from this Directorate. So, the order of regularization of your service as Subject Teacher in Sanskrit is fake, false and fabricated you are therefore charged with manipulation of records willfully, deliberately and intentionally to mislead the Departmental Authorities for your pecuniary gain in service illegally. You are charged with forgery. 2. That while you were serving as i/c Principal of the School, you have received an amount of Rs. 3,00,000/-(Rupees three lakhs) only from Buniyad Scheme for infrastructure development of the School on 31.12.2004 vide cheque No. 0041 641 5. The said amount was not deposited in the Account No. 3684 in the Assam Co-Operative Apex Bank, Panbazar, whereas the amount was deposited to Bank Account No. 01 000061754 in the SBI, Panbazar which is meant for the salary of the staff. The fund was not utilized during the period from 2004-2011 for the infrastructure development of the school even though withdrawals were made in January, 2005 and thereafter. The fund was not utilized during the period from 2004-2011 for the infrastructure development of the school even though withdrawals were made in January, 2005 and thereafter. But most interestingly on 22.06.2011 you have deposited an amount of Rs. 3, 00, 000/-(Rupees three lakhs) only in cash to the Bank Account No. 3684 in the Assam Co-Operative Apex Bank, Panbazar, which clearly reveals that you have tried to misappropriate the Govt. grant/money intentionally with deliberate attempt. Hence, you are charged with total misappropriation of Govt. fund with full cognizance. 3. That while you were serving as i/c Principal of the School fees were collected from students of the school and expenditures were incurred from the collection through Bank Account in the name of the School and the Accounts maintained by you as the DDO needs regular Audit through the Assistant Director of Audit (Local Fund) Assam, Guwahati-06, but for a pretty long time no accounts were produced for Audit before the said authority (since 01.04.2002 Till 30.09. 2011) and the reason is best known to you. Hence, this shows a total negligence in performing duty with malafide intention to misappropriate the school fund at your behest. 5. In terms of the stipulation made in the charge sheet, the petitioner was required to submit his written statement which he did vide Annexure-6 dated 29.12.2011. In the said written statement, the petitioner denied the charges. While it is the case of the petitioner that pursuant to issuance of the charge sheet and submission of reply by him, no departmental enquiry worth the name complying with the settled principles relating to conducting a departmental enquiry had followed, but according to the respondents, an enquiry was conducted, in which the petitioner was found guilty of all the charges. 6. It appears that the petitioner had earlier approached this Court by filing a writ petition being WP(C) No. 4579/2012 challenging the order of suspension referred to above. The writ petition was disposed of vide order dated 26.09.2012 providing for consideration of the departmental appeal to be preferred by the petitioner, by the appellate authority. It was pursuant to the said order, the Director of Secondary Education, Assam passed the order dated 19.11.2012, by which he referred to the impugned order dated 23.03.2012, by which while imposing penalty of stoppage of two increments with cumulative effect, the petitioner was shown reinstated in service. It was pursuant to the said order, the Director of Secondary Education, Assam passed the order dated 19.11.2012, by which he referred to the impugned order dated 23.03.2012, by which while imposing penalty of stoppage of two increments with cumulative effect, the petitioner was shown reinstated in service. However, the petitioner has disputed the issuance of any such order inasmuch as the same was never served on him, but for which he would have joined his service and also continued till attaining the age of superannuation on 31.12.2012. 7. It is in the aforesaid facts situation, Mr. J. Abedin, learned Standing Counsel, Education Department was directed to produce the relevant records to find out the veracity or otherwise of the plea of the respondents that the petitioner was served with the copy of the order of reinstatement and also that the departmental enquiry against him was conducted following the due procedure and providing him with all reasonable opportunity of being heard. 8. Mr. Abedin, learned Standing Counsel, Education Department has fairly submitted in reference to the said records/file that although the impugned order dated 23.03.2012 is found to have been issued, but there is nothing to show that the same was served on the petitioner. Mr. U.K. Nair, learned counsel for the petitioner also submits that had it been a case of serving the copy of the said order on the petitioner, he would have rejoined his service instead of waiting for his retirement on attaining the age of superannuation on 31.12.2012. 9. Irrespective of the aforesaid submissions made by the learned counsels for the parties, I have verified the records/file produced by Mr. J. Abedin, learned Standing Counsel, Education Department. Upon verification of the said records, nothing is discernible so as to indicate that the copy of the impugned order dated 23.03.2012 was served on the petitioner. It was only after filing of the writ petition being WP(C) No. 67/2013, when the petitioner was made aware of the said order, he filed the 2nd writ petition being WP(C) No. 568/2014. 10. Independent of the above, I have also verified the records/file to find out as to whether the departmental proceeding was conducted following the due procedure and in accordance with law. It is found that after the issuance of the charge sheet, the enquiry was attended to by five persons including the petitioner on 09.01.2012. 10. Independent of the above, I have also verified the records/file to find out as to whether the departmental proceeding was conducted following the due procedure and in accordance with law. It is found that after the issuance of the charge sheet, the enquiry was attended to by five persons including the petitioner on 09.01.2012. The other four witnesses are-two Assistant Teachers, one Upper Division Clerk and the respondent No. 3. They made a joint statement in writing stating therein that the allegations made against the petitioner are true and that they have nothing to say about the subject matter. By the said joint letter, a request was made to the Enquiry Officer to visit the school and then to verify the records. 11. Above being the manner of making statements by four witnesses, there was no occasion for the petitioner to cross examine them on their purported statements which was also not furnished to him. It is also not discernible from the records as to whether the Enquiry Officer had visited the school for physical verification of the records. Even if that was done, the same could not have been behind the back of the petitioner. His association was required towards verification of the record and returning adverse findings against him. However, the said course of action is not discernible from the file/record. It will be pertinent to mention here that it is the specific case of the petitioner that no enquiry worth the name was conducted and that the petitioner was also not afforded with any opportunity of being heard including the opportunity to cross examine the witnesses. 12. From the records, it appears that after issuance of the charge sheet and submission of the written statement by the petitioner, the Enquiry was conducted on 09.01.2012 in the above manner and thereafter no enquiry proceeding was conducted affording any opportunity to the petitioner. On the other hand, the petitioner in his show cause reply categorically denied the charges. Thus, it can very well be argued that if the joint statements of the four witnesses could be accepted, why not the denial statement of the petitioner. Be that as it may, the enquiry having not been conducted following the due procedure, the disciplinary authority could not have imposed the penalty on the basis of the same submitted by the Enquiry Officer following the said procedure. 13. Be that as it may, the enquiry having not been conducted following the due procedure, the disciplinary authority could not have imposed the penalty on the basis of the same submitted by the Enquiry Officer following the said procedure. 13. On perusal of the order of the disciplinary authority dated 23.03.2012, it is found that the findings of the Enquiry Officer stand incorporated in the said order. However, on perusal of the Enquiry Report available in the record/file, incorporation made in the impugned order is not reflected. Thus, in the name of recording the findings of the Enquiry Officer, it is in fact the finding of the disciplinary authority, which finds mention in the impugned order dated 23.03.2012. On perusal of the enquiry report dated 12.01.2012, rather it is found that the petitioner did not make use of the Xerox copy of the order in question for any service benefit as Subject Teacher. The enquiry report also finds mentions about inapplicability of the charge of misappropriation of any government money. After narrating the facts in the enquiry report, the Enquiry Officer recorded the following findings:- After verification of the documents and evidentiary sources, it can be concluded that there are certain discrepancies, intentional or unintentional, in the action of Sri U. Sarma. Being the disciplinary authority, decision may be taken by your honour. The enquiry report does not as such attribute any proof of the charges which were leveled against the petitioner. Even if it does, the same is inconsequential in view of the procedural irregularity in conducting the enquiry. On the other hand, the disciplinary authority in its impugned order dated 23.03.2012 (Annexure-11) taking the name of the Enquiry Officer has observed that in the report, the Enquiry Officer found the charges leveled against the petitioner proved beyond doubt. But on perusal of the enquiry report, no such findings are discernible. 14. Above being the position, I have no hesitation to set aside and quash the impugned orders entitling the petitioner to all consequential benefits. Consequently, the petitioner shall be deemed to be in service all throughout from the date of suspension till he retired from service on attaining the age of superannuation on 31.12.2012 entitling him to all consequential service benefits including salary. 15. Both the writ petitions are allowed, without, however, any order as to costs.