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2015 DIGILAW 1195 (GAU)

Ramani Kumar Sarma v. Guwahati University

2015-09-17

UJJAL BHUYAN

body2015
JUDGMENT : 1. Heard Mr. S. Kataki, learned counsel for the petitioner and Mr. L.P. Sarma, learned Standing Counsel, Gauhati University. 2. Having regard to the subject matter of the writ petition and the order that is proposed to be passed, issuance of formal notice is considered not necessary and case is taken up for disposal at the motion stage itself. 3. Petitioner is the Superintending Engineer of Gauhati University. By order dated 13.02.2014 issued by the Registrar of Gauhati University, petitioner was placed under suspension. Thereafter, show cause notice dated 12.04.2014 was issued to the petitioner asking him to show cause under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964 read with Article 311 of the Constitution as to why any of the penalties prescribed in Rule 7 of the aforesaid Rules should not be imposed on the following charges:- “1. That, while you were working as a University Engineer, you issued a Work Order No. F.25/07/4970 dated 15th of February, 2007 to M/S BMG informatics for installation and management of networking software and implementation and University Management Software and automation of Central Library asking them to start the execution of the work on or before 19.02.2007 in consultation with you and to complete the work within 20.05.2007 as per the stipulated period. But you did not take any steps to complete the work within 20th of May, 2007 as stipulated period in the Tender and the work is not yet completed. From the records it appears that, no correspondence has been made with M/S BMG Informatics by you to complete it within 20.05.2007. You are therefore charged with insubordination, inefficiency and negligence of duties. 2. That while you were working as a University Engineer, you gave your remarks on 20.12.2006 in the Comparative Statements placed before the Constitution Committee (CC) indicating that, the M/S BMG Informatics has accepted all the terms and conditions as mentioned in the Tender. In the Tender document published vide Tender dated 29.11.2006, it was specifically mentioned- i) That, no advance payment will be made till submission of the System Study Report. ii) 15% advance for System Development and System Testing, and System Acceptance Testing and duly certified by the authorized technical person of Gauhati University. iii) 60% on installation, implementation and testing (performance study). ii) 15% advance for System Development and System Testing, and System Acceptance Testing and duly certified by the authorized technical person of Gauhati University. iii) 60% on installation, implementation and testing (performance study). iv) 15% on monitoring, training and successful completion of the report, duly certified by the authorized technical person of the Gauhati University. But while issuing the Work Order, you changed the payment terms stating- a) Work Order communicated vide Memo No. F.25/07/4980-83 dated 15.02.2007 changed the payment terms as follows: b) For Hardware and System Software: 90% delivery and balance 10% on installation of Hardware and System Software. Application Software-e-IMS-web based University Management Module and System Software for University Management and Library Management. 1) An amount of Rs. 7,00,000/- will be paid after submission of the approval of the SRS. 2) An amount of Rs.17,00,000/- on delivery of Application of Software, as per the SRS report approval. 3) An amount of Rs. 3,00,000/- after completion of User Acceptance Testing of the Application Software. 4) An amount of Rs. 2,00,000/- after completion of the Training. 5) Tax, inclusive as per the currently prevailing rate. 6) Security Deposit-10% Security Deposit shall be deducted from the RA Bill as per the Gauhati University Rules. 7) Discount-8% will be deducted from the Bill as Discount offered in the Tender. And thus, you had deviated the terms of payment from the original tender only to give undue benefit to the tenderer in colourable exercise of your power to achieve collateral gain. You are therefore charged with gross misconduct, insubordination, violation of norms and procedure of the University causing huge pecuniary loss to the University Authority. 3. That, while you were working as a University Engineer, the Work Order which was allotted to M/S BMG Informatics was a turnkey project. In the said project, without installing the software, the tenderer placed the hardware which became useless, but you recommended for payment to M/S BMG Informatics for the hardware supply without installing the software in violation of the terms and conditions of the Tender and as a result of which the University had to pay huge amount to M/S BMG Informatics without any fruitful results. You are therefore charged with causing huge financial loss to the University Authority, which was a gross misconduct on your part. 4. You are therefore charged with causing huge financial loss to the University Authority, which was a gross misconduct on your part. 4. That, while you were working as a University Engineer, you placed an order to the M/S BMG Informatics vide; Work Order dated 15.02.2007 for specification of the University web based University Management Module and out of different modules namely: 1) Admission-Student Selection Process Management. 2) Payment Management-Fee structure, Fee acceptance, Transaction, Fee Receipt Status, Fee Waiver etc. and the other Management Modules are not completed and the website University Management Modules as mentioned in the Tender Document are not yet completed and no steps were taken by you to complete the other Modules in time. You are therefore charged with lack of supervision, causing financial loss to the University which is unbecoming of an officer of the University. 5. That, while you were working as a University Engineer, you gave a note on 20.12.2006 indicating that the M/S Pioneer failed to attend the demonstration of the selection although they assured for such demonstration. Out of three firms namely, M/S BMG, HCL and Pioneer, M/S BMG quoted rates are found to be lowest and BMG accepted all the terms and conditions as mentioned in our Tender. Knowing fully well that BMG accepted all the terms including the terms as per the Tender documents of the Gauhati University but you have placed work order on M/S BMG in deviating the payment terms as mentioned in the Tender. From the above, the intention of the University Engineer is very clear to show undue advantage to M/S BMG Informatics Ltd. You have shown favouritism to M/S BMG for your illegal personal gain. You are therefore charged with showing undue favour to M/S BMG causing financial loss to the Gauhati University which is unbecoming for an officer of Gauhati University. 6. That, while you were working as a University Engineer, you showed undue favour to M/S BMG Informatics by changing the payment terms in total violation of the terms and conditions of the Tender. The same was done with the collaboration of the Tenderer only to achieve collateral gain by you and for which the payment was made to M/S BMG Informatics for the value of Rs. 66,55,586/- (Rupees Sixty Six Lakhs, Fifty Five Thousand, Five Hundred and Eighty Six Only). The same was done with the collaboration of the Tenderer only to achieve collateral gain by you and for which the payment was made to M/S BMG Informatics for the value of Rs. 66,55,586/- (Rupees Sixty Six Lakhs, Fifty Five Thousand, Five Hundred and Eighty Six Only). Moreover, the said M/S BMG Informatics has filed a case against the University for an amount of Rs. 33,43,963 (Rupees thirty three lakhs, fourty three thousand, nine hundred and sixty three) only. The said case was registered as WP (C) No. 5326 of 2011, which is now pending before the Hon’ble Gauhati High Court. You are therefore charged with causing huge monetary loss to the University as the entire amount became as unfruitful expenditure as pointed out by the Auditor of Accountant General, Guwahati and this is only because of your negligence, which itself is a gross misconduct. You are also charged with misleading and violation of the office Discipline which is unbecoming for an officer of Gauhati University.” 4. The show-cause notice was accompanied by a statement of allegation, list of documents and a list of witnesses in support of the charges framed. 5. Petitioner submitted his written statement on 26.04.2014, denying the charges brought against him. 6. Petitioner was informed vide letter dated 09.08.2014 by the Registrar as the disciplinary authority that the University authority was not satisfied with the written statement submitted by the petitioner and accordingly decided to draw up a departmental proceeding against him being departmental proceeding No. 3 of 2014. Enquiry officer was appointed so also a presenting officer. Petitioner was informed that he could take the help of any member of his staff or officer to defend his case. Thereafter, the enquiry commenced. Ultimately, on conclusion of the enquiry, the enquiry officer submitted his report dated 05.11.2014 to the disciplinary authority. Enquiry officer has held that the charges against the petitioner has been proved and established in the enquiry. 7. Registrar as the disciplinary authority thereafter issued memorandum dated 04.09.2015 to the petitioner enclosing therewith a copy of the enquiry report dated 05.11.2014. The memorandum was issued to the petitioner as per resolution of the Executive Council dated 03.07.2015. Relevant portion of the memorandum reads as under:- “1. 7. Registrar as the disciplinary authority thereafter issued memorandum dated 04.09.2015 to the petitioner enclosing therewith a copy of the enquiry report dated 05.11.2014. The memorandum was issued to the petitioner as per resolution of the Executive Council dated 03.07.2015. Relevant portion of the memorandum reads as under:- “1. Sri R. K. Sarma, Superintending Engineer (under suspension), Gauhati University is hereby informed that it is proposed by the competent Authority of the University to impose the penalty of removal from University service under Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964 and under Rule 46 of Gauhati University Employees Service Conditions, Conduct and Appeal Rules, 1970 against him on the ground of allegation of charges on him vide Charge Sheet under Ref. Memo No. GU/Estt/Ocr/80/20/2014/12971 dated 12/04/2014, which have been proved as per the findings of the Enquiry Committee appointed. A copy of the report of the Enquiry Committee submitted on 05/11/2014 on the charges of allegations against Sri R. K. Sarma is enclosed herewith. 2. Sri R. K. Sarma is hereby given an opportunity to make such representation under Rule 48 Clause 10 (i) (b) of the Gauhati University Employees Service Conditions, Conduct and Appeal Rules, 1970, as he wishes to make on the penalty proposed to be taken against him as above. Such a representation, if any, should be made in writing and submitted so as to reach the undersigned not later than 7 (seven) days from the date of receipt of this Memorandum by Sri R. K. Sarma. 3. If Sri R. K. Sarma fails to submit his representation within 7 (seven) days of the receipt of this Memorandum, it will be presumed that he has no representation to make and order will be liable to be passed against Sri R. K. Sarma ex parte. 4. The receipt of this Memorandum should be acknowledged by Sri R.K. Sarma.” 8. It is at this stage that the present writ petition has been filed by the petitioner challenging the legality and validity of the memorandum dated 04.09.2015, enquiry report dated 05.11.2014 and the show cause notice dated 12.04.2014. 9. Mr. Kataki, learned counsel for the petitioner submits that there were no materials before the enquiry officer to come to the conclusion that the charges framed against the petitioner stood proved. Such findings have been recorded without any supporting materials and are therefore perverse. 9. Mr. Kataki, learned counsel for the petitioner submits that there were no materials before the enquiry officer to come to the conclusion that the charges framed against the petitioner stood proved. Such findings have been recorded without any supporting materials and are therefore perverse. He also submits that the procedure followed by the disciplinary authority while issuing the impugned memorandum dated 04.09.2015 is totally wrong in as much as before accepting the findings of the enquiry officer, copy of the enquiry report ought to have been given to the petitioner and his response thereto ought to have been considered. Only after considering the same the disciplinary authority could have arrived at the conclusion whether to accept the findings of the enquiry officer or not. But in this case, the disciplinary authority straight away proposed to impose the penalty of removal from service on the petitioner before furnishing him a copy of the enquiry report meaning thereby that the disciplinary authority had already taken the decision to accept the enquiry report. This is in violation of the principles of natural justice as well as the provisions of Article 311 (2) of the Constitution as explained by the Constitution Bench of the Hon’ble Supreme Court in the case of the Managing Director, ECIL vs. B. Karunakar, (1993) 4 SCC 727 . 10. On the other hand, Mr. L. P. Sarma, learned Standing Counsel, Gauhati University submits that the writ petition is pre-mature in as much as no decision has been given by the disciplinary authority. At this stage, writ petition may not be entertained. He further submits that the petitioner was given full opportunity in the enquiry to defend his case whereafter the enquiry officer has submitted his report. Final decision by the disciplinary authority is yet to be taken. 11. Submissions made by learned counsel for the parties have been considered. 12. Departmental proceeding against the petitioner has been drawn up under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 read with Article 311 of the Constitution of India. Article 311 of the Constitution deals with dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or the State. Sub-article (2) of Article 311 is relevant. After the 42nd Constitution amendment, Article 311 (2) of the Constitution now reads as under:- “311(2). Article 311 of the Constitution deals with dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or the State. Sub-article (2) of Article 311 is relevant. After the 42nd Constitution amendment, Article 311 (2) of the Constitution now reads as under:- “311(2). No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.” 13. The provisions of Article 311 (2) post 42nd amendment has been explained by the Constitution Bench of the Apex Court in the case of Managing Director, ECIL (supra). For ready reference paragraphs 25, 26 & 27 of the said decision, which are relevant, are extracted hereunder:- “25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment. 26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it. 27. It will thus be seen that where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it. 27. It will thus be seen that where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings.” 14. Thus the law as it stands today is that before acceptance of the enquiry report by the disciplinary authority i.e., before holding the delinquent guilty, a copy of the enquiry report is required to be given to the delinquent, who may submit his response to the enquiry report. The disciplinary authority thereafter is required to consider the enquiry report together with the record of the enquiry and the response of the delinquent and thereafter come to a conclusion whether to accept the report of the enquiry officer or not. After such consideration, if the disciplinary authority decides to accept the report of the enquiry officer and holds the delinquent guilty, he may proceed to the next stage of awarding of punishment. At the stage of award of punishment, no further notice is required to be given to the delinquent. This is the change brought in by the 42nd amendment to Article 311 (2) of the Constitution. 15. On the backdrop of the above legal position, the impugned memorandum dated 04.09.2015 may now be examined. It would be clear from a perusal of the same that already the disciplinary authority has accepted the report of the enquiry officer and has proposed to impose the penalty of removal from service. Petitioner has been asked to submit his response on the penalty proposed while furnishing him with a copy of the enquiry report. It would be clear from a perusal of the same that already the disciplinary authority has accepted the report of the enquiry officer and has proposed to impose the penalty of removal from service. Petitioner has been asked to submit his response on the penalty proposed while furnishing him with a copy of the enquiry report. This is contrary to the law laid down by the Apex Court in the case of Managing Director, ECIL (supra) as discussed above. The error committed by the disciplinary authority is that before furnishing a copy of the enquiry report to the delinquent and without considering his response thereto, if any, decision was already taken to accept the findings of the enquiry officer holding the petitioner guilty and proceeded to the next stage of imposition of penalty. The ultimate finding of guilt has to be recorded by the disciplinary authority and not by the enquiry officer who has only given his report which is however a relevant document to be considered by the disciplinary authority. But before recording a finding of guilt by the disciplinary authority, principles of natural justice requires that the delinquent should be heard and since the enquiry report would be considered by the disciplinary authority, a copy of the same should be furnished to the delinquent in advance to enable the delinquent to point out defects in the enquiry report, if any. It is for this purpose that notice to delinquent is required to be given before the decision is taken to accept the enquiry report or not. If thereafter the delinquent is held guilty, penalty would follow. As explained by the Apex Court, at the stage of imposition of penalty no further notice is required to be given to the delinquent. This error has fundamentally vitiated the decision making process. 16. Therefore, impugned memorandum dated 04.09.2015 becomes wholly untenable and is accordingly interfered with. The same is set aside and quashed. 17. Since a copy of the enquiry report has now been furnished to the petitioner, he may submit his response thereto within a period of 15 (fifteen) days from today. On receipt of the response of the petitioner, the disciplinary authority may examine the same alongwith the enquiry report and the record of enquiry before taking a de-novo decision whether to accept the enquiry report or not. On receipt of the response of the petitioner, the disciplinary authority may examine the same alongwith the enquiry report and the record of enquiry before taking a de-novo decision whether to accept the enquiry report or not. For a fair decision, Court is of the view that petitioner may also be granted a personal hearing by the disciplinary authority before taking the de-novo decision. 18. Writ petition is accordingly allowed to the extent indicated above. No cost.