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2015 DIGILAW 1248 (GAU)

Indrajit Sen v. State of Assam

2015-09-29

UJJAL BHUYAN

body2015
JUDGMENT : Ujjal Bhuyan, J. 1. This order will dispose of WP(C) Nos. 166/2013, and 4504/2014 as the two cases being inter-related were heard together. Heard Mr. S. Gogoi, learned counsel for the petitioner in both the cases and Dr. B. Ahmed, learned Standing Counsel, Irrigation Department, Assam, who has produced the record. 2. Petitioner is the same in both the cases. 3. In WP(C) No. 166/2013 prayer made is for a direction to the respondents to modify the designation of the petitioner from Power Pump Operator to Electrician whereas in WP(C) No. 4504/2014 challenge has been made to the legality and validity of the order dated 01.08.2014 passed by the disciplinary authority imposing the penalty of recovery of excess salary allegedly drawn by the petitioner as Electrician for the period from 01.08.1997 to 30.06.2007 amounting to Rs. 77,661.00. WP(C) No. 166/2013 4. By order dated 03.10.1991 issued by the Executive Engineer, Dibrugarh Electrical Division (Irrigation), petitioner was appointed as Electrician in the time scale of pay in the office of the Assistant Executive Engineer, Lakhimpur Electrical Sub-division (Irrigation) w.e.f. 01.10.1991. At that stage, petitioner was working as Work Charged Power Pump Operator. 5. Thereafter petitioner was transferred from Dibrugarh Electrical Division (Irrigation) to Lakhimpur Electrical Division (Irrigation) vide order dated 12.02.1993 pursuant to which he joined at Lakhimpur Division on 18.02.1993. 6. Government of Assam took a policy decision in the year 1997 to regularize the services of 1186 work charged persons who had completed 5 years of service as on 01.04.1996. Accordingly, service of the petitioner was regularized vide Government order dated 28.02.1997 with the concurrence of the Finance Department. Petitioner continued to work as Electrician drawing his salary in the pay scale of Electrician with admissible increments. His service book was also opened as Electrician. 7. According to the petitioner he did not receive his salary in the month of August, 2007. On enquiry he could come to know that his service was regularized by the Government as Power Pump Operator and not as Electrician on the basis of wrong submission of proposal. However, the Executive Engineer, Lakhimpur Irrigation Division wrote to the Chief Engineer on 15.03.2008 requesting the latter for retention of the post of Electrician held by the petitioner. He stated that through oversight proposal for annual retention of the post held by the petitioner was shown as Assistant Electrician instead of Electrician. However, the Executive Engineer, Lakhimpur Irrigation Division wrote to the Chief Engineer on 15.03.2008 requesting the latter for retention of the post of Electrician held by the petitioner. He stated that through oversight proposal for annual retention of the post held by the petitioner was shown as Assistant Electrician instead of Electrician. By a subsequent communication dated 19.04.2008, the Executive Engineer informed the office of the Chief Engineer again that through oversight proposal for annual retention of the post held by the petitioner was shown as Assistant Electrician in place of Electrician. The higher authority was requested to modify the proposal submitted for retention of the post as Electrician so as to enable release of salary to the petitioner w.e.f. 01.06.2007 after obtaining retention letter from the Government. In his letter dated 26.06.2008, the Executive Engineer informed the Chief Engineer that an error appeared to have occurred at the time of submission of proposal for regularization of the service of the petitioner as instead of Electrician, petitioner's post was wrongly shown as Power Pump Operator but salary of the petitioner was continued to be paid as Electrician. This error was detected only in December, 2007. So fresh proposal was submitted for retention of post of Electrician by modification of designation. 8. However, the Chief Engineer, Irrigation vide his communication to the Government dated 24.04.2012 submitted ex-post facto retention proposal of the post of the petitioner as Power Pump Operator (PPO). It was stated that a copy of enquiry report submitted by the Superintending Engineer was forwarded alongwith the proposal which indicated discrepancy in the designation of the petitioner. Executive Engineer was directed to correct the designation of the petitioner as PPO instead of Assistant Electrician/Electrician. The Government also wrote to the Office of the Accountant General for ex-post facto retention of one temporary post of PPO in respect of the petitioner in the establishment of Executive Engineer, Lakhimpur Irrigation Division. 9. Aggrieved, present writ petition has been filed seeking the relief as indicated above. 10. On 11.01.2013 an order was passed that no recovery shall be affected. This Court by order dated 29.01.2013 had issued notice and as an interim measure directed the respondents to disburse the current salary of the petitioner as PPO, clarifying that acceptance of salary of PPO by petitioner would be without prejudice to his rights and contentions advanced in the writ petition. This Court by order dated 29.01.2013 had issued notice and as an interim measure directed the respondents to disburse the current salary of the petitioner as PPO, clarifying that acceptance of salary of PPO by petitioner would be without prejudice to his rights and contentions advanced in the writ petition. It was also directed that earlier interim order dated 11.01.2013 would continue. 11. Though this case is pending for more than 2 1/2 years now, no affidavit has been filed by the respondents till date. WP(C) No. 4504/2014 12. Petitioner was served with a show cause notice dated 07.10.2013 issued by the Executive Engineer, Lakhimpur Irrigation Division under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (1964 Rules) read with Article 311 of the Constitution of India as to why any of the penalties prescribed under Rule 7 of the 1964 Rules should not be imposed on the following charges:- "1. That while scrutining your bio-data related to your service book, it is found that some datas have been erased and put false in your documents and the same has been submitted making photo copies to the undersigned which were required for budget communication/retention of post etc. 2. Such records submitted to the undersigned has become contradictory while scrutinizing the documents at higher level thereby misleading the office causing an embarrassing situation. 3. You had drawn excess salaries of electrician w.e.f. 01.01.1996 to 01.09.2006 instead of P.P.O." 13. Petitioner submitted his written statement in defence dated 21.10.2013 denying the charges framed against him. Additional written statement was filed on 21.10.2013. Petitioner stated that he was working as Electrician and was paid salary of Electrician. 14. It appears that before receipt of the explanation submitted by the petitioner the disciplinary authority decided to hold an enquiry. Accordingly, Enquiry Officer was appointed. The Assistant Executive Engineer, Bihpuria Sub-Division, who was appointed as the Enquiry Officer, conducted the enquiry on 05.09.2013 and submitted his report dated 06.09.2013 to the disciplinary authority. It was held that petitioner was regularized as PPO and therefore excess salary drawn by him as Electrician may be recovered. 15. Thereafter, the Executive Engineer acting as the disciplinary authority passed an order dated 01.08.2014 holding that petitioner had drawn excess salary as Electrician for the period from 01.08.1997 to 30.6.2007 by tampering with the service book/records and misleading the authority with distorted facts. 15. Thereafter, the Executive Engineer acting as the disciplinary authority passed an order dated 01.08.2014 holding that petitioner had drawn excess salary as Electrician for the period from 01.08.1997 to 30.6.2007 by tampering with the service book/records and misleading the authority with distorted facts. Accordingly, penalty of recovery of excess salary drawn by the petitioner as Electrician for the period from 01.08.1997 to 30.06.2007 was imposed which was quantified at Rs. 77,661.00. It was directed that the said amount should be recovered from the petitioner in 36 equal monthly installments. 16. Aggrieved, the second writ petition came to be filed by the petitioner which was admitted for hearing on 08.09.2014. 17. Mr. Gogoi learned counsel for the petitioner submits from the materials on record that it is evident that proposal of the appointing authority was for regularization of his service as Electrician but through inadvertence it was wrongly mentioned as PPO. However, his service was regularized as Electrician. Subsequently, again because of an inadvertent mistake, petitioner's designation was wrongly mentioned as Assistant Electrician for the purpose of retention of post which created the confusion. It was not at all justified on the part of the higher authority to latch on to such inadvertent mistakes and thereafter grant ex-post facto approval for retention of the post held by him as PPO. Consequential decision of the State granting ex-post facto approval to the post held by the petitioner as PPO instead of Electrician is wholly untenable. Learned counsel for the petitioner submits that Electrician is a higher post compared to PPO and after rendering service as Electrician for more than 15 years, he could not have been demoted in the manner in which it has been done. On the question of imposition of penalty which is the subject matter of the second writ petition, learned counsel for the petitioner submits that firstly, petitioner had committed no wrong, therefore, there cannot be any disciplinary action against him. Secondly, the charges framed against the petitioners are vague and not definite. No statement of allegations, list of witnesses and list of documents were furnished to the petitioner alongwith the show cause notice. Copy of the enquiry report was also not furnished to the petitioner prior to passing of the impugned order. Secondly, the charges framed against the petitioners are vague and not definite. No statement of allegations, list of witnesses and list of documents were furnished to the petitioner alongwith the show cause notice. Copy of the enquiry report was also not furnished to the petitioner prior to passing of the impugned order. Procedure laid down in Rule 9 of the 1964 Rules is mandatory in character and it is evident that there was non-compliance with the laid down procedure in the departmental proceeding which has materially affected the decision making process. Therefore, the penalty imposed cannot be sustained. Accordingly, learned counsel submits that on the above grounds both the writ petitions should be allowed. 18. Dr. B. Ahmed, learned Standing Counsel submits that original record is available with him. The record discloses that an internal enquiry was conducted by the Office of the Superintending Engineer wherein it was found that there was some interpolation and erasement in the record regarding the post in which petitioner was regularized which had resulted in drawal of excess salary by the petitioner. It appears that the word PPO was erased and in place of it the word Electrician was inserted. On the basis of such enquiry report, respondents had come to the conclusion that service of the petitioner was regularized as PPO and not as Electrician. Therefore, steps were taken to correct the situation by placing the petitioner in the appropriate designation of PPO. As the petitioner had unauthorizedly drawn salary in the rank of Electrician, it became necessary for the Department to initiate steps for recovery of the excess salary drawn by the petitioner. Since this was a misconduct on the part of the petitioner, respondents were justified in initiating disciplinary proceeding against the petitioner and rightly imposed the penalty of recovery of excess salary on the petitioner which cannot be said to be harsh or disproportionate to the gravity of the misconduct. He therefore submits that there is no merit in both the writ petitions which should be dismissed. 19. Submissions made by learned counsel for the parties have received the due consideration of the Court. 20. In so far subject matter of WP(C) No. 166/2013 is concerned the stand taken by the departmental counsel cannot be accepted. He therefore submits that there is no merit in both the writ petitions which should be dismissed. 19. Submissions made by learned counsel for the parties have received the due consideration of the Court. 20. In so far subject matter of WP(C) No. 166/2013 is concerned the stand taken by the departmental counsel cannot be accepted. Though it is contended that the enquiry was conducted by the Superintending Engineer, it appears that petitioner was not at all involved in the said enquiry. Even a copy of the enquiry report was not furnished to the petitioner. On the other hand, petitioner continued as Electrician from 1991 upto 2007 for long 16 years. It is also not the stand of the appointing authority i.e. the Executive Engineer that petitioner had manipulated, the record by changing his designation from PPO to Electrician. The initial stand of the Executive Engineer was that while seeking retention of the post held by the petitioner it was inadvertently mentioned as Assistant Electrician. Since there was discrepancy in the post held by the petitioner and the post for which retention was sought for, salary was held up by the Office of the Accountant General. Later on the Executive Engineer sated that it could be detected later that at the time of submission of proposal for regularization, the post of the petitioner was wrongly mentioned as PPO instead of Electrician. This cannot be a justifiable reason for submitting modified proposal for retention of the post of the petitioner as PPO, that too more than 15 years after regularization. 21. That being the position, change of designation of the petitioner from Electrician to PPO cannot be justified and appears to be wholly untenable. 22. Coming to the second writ petition i.e. WP(C) No. 4504/2014, the charges framed against the petitioner have already been noticed above. On a perusal of the charges, it is quite evident that not to speak of framing definite charges, the charges so framed are absolutely vague and devoid of any specifics. Moreover, the charge memo was not accompanied by any list of witnesses and list of documents. On a perusal of the charges, it is quite evident that not to speak of framing definite charges, the charges so framed are absolutely vague and devoid of any specifics. Moreover, the charge memo was not accompanied by any list of witnesses and list of documents. A perusal of Rule 9 of the 1964 Rules would show that a statement of allegation based on which the charges have been framed, list of witnesses and list of documents by whom and by which the disciplinary authority seeks to substantiate the charges framed against the delinquent are mandatorily required to be furnished to the delinquent. This Court has held in Uma Prasad Gogoi Vs. State of Assam, reported in 1996 (3) GLT 513 : (1996) 3 GLR 105, Babulal Das Vs. State of Assam & Anr., reported in 2004 (2) GLT 259 : (2004) 3 GLR 372 and Renu Barman Vs. State of Assam, reported in 2010 (3) GLT 552 that the provisions of Rule 9 of the 1964 Rules are mandatory in character. That apart, from a perusal of the impugned order dated 01.08.2014, it is evident that copy of the enquiry report was not furnished to the petitioner prior to passing of the said order. The Supreme Court in the case of Managing Director, ECIL Hyderabad Vs. B. Karunakar, reported in (1994) 2 SCC 391 has held that prior to the decision to accept the enquiry report or not is taken by the disciplinary authority i.e., whether to hold the delinquent guilty or not, copy of the enquiry report is required to be furnished to the delinquent and his response to the same is required to be considered. Only thereafter, it would be open to the disciplinary authority to take a decision regarding the guilt or otherwise of the delinquent though at the stage of imposition of penalty further notice is not required. As a matter of fact, the enquiry appeared to have been conducted without considering the written statement submitted by the petitioner. 23. From the above it is quite evident that the procedure prescribed under Rule 9 of the 1964 Rules as well as the procedure laid down by the Apex Court in Managing Director, ECIL (supra) have not been complied with while imposing the impugned penalty. 24. 23. From the above it is quite evident that the procedure prescribed under Rule 9 of the 1964 Rules as well as the procedure laid down by the Apex Court in Managing Director, ECIL (supra) have not been complied with while imposing the impugned penalty. 24. Though learned counsel for the petitioner has placed reliance on the recent decision of the Apex Court in the case of State of Punjab & Ors. Vs. Rafiq Masih reported in (2015) 4 SCC 334 to contend that recoveries would not be impermissible in the case of excess payment made to a Class-III employee and when excess payment has been made for a period of over 5 years, that too when the employee received the alleged excess salary due to no fault of his, Court is of the view that in view of the findings already arrived at, it may not be necessary to delve into this aspect of the matter. 25. For all the aforesaid reasons, impugned penalty dated 01.08.2014 is hereby set aside and quashed. Respondents are directed to treat the petitioner as Electrician and to allow him to continue his service in such capacity with consequential benefits. 26. At this stage, Dr. Ahmed learned Standing Counsel for the Irrigation Department submits that liberty may be given to the Department to utilize the service of the petitioner in any other capacity if the exigencies of service requires. While it is needless to comment upon such submission, it is however made clear that in the event such a course of action is contemplated, then while doing so it should be borne in mind that petitioner's substantive posting is Electrician. Both the writ petitions are accordingly allowed. However, there shall be no order as to cost.