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2015 DIGILAW 1387 (GAU)

Debendra Nath Kalita v. State of Assam

2015-11-05

HRISHIKESH ROY

body2015
JUDGMENT : Heard Mr. D. Goswami, the learned Counsel appearing for the petitioner. The respondent Assam Government Construction Corporation and their officials (hereinafter referred to as “the Corporation”) are represented by Mr. S.K. Goswami, the learned Advocate. The Standing Counsel, PWD Ms. B. Bhuiya appears for the respondent No.1, since the assets of the defunct Corporation is now managed by the P.W.D. 2. The petitioner was a Junior Assistant-cum-Typist in the Corporation and a disciplinary proceeding was initiated against him through the show cause notice dated 28.2.2001 (Annexure-12) containing the 3 following charges :- “1. You were transferred from NRL (G) Unit to BRPL (DCU) Unit in the interest of the work of the Corpn. Vide T.O. No. AGCC/E/38/81/91 dated 09.05.2000 but till now neither you have reported in your new place of posting at BRPL (DCU) unit nor you are present in NRL (G) Unit. 2. While you were in service at NRL (G), you are found absent in your duties w.e.f. 1.9.1998 without any information to the authority concerned and remained absent in your duties till date. Notice was served to you vide T.O. No. AGCC/E/2/2000/3 dated 25.7.2000, AGCC/E/2/2000/23 dated 30.9.2000 and AGCC/E/2000/26 dated 01.12.2000 but you have not yet reported in your duty. 3. From several of your uncalled for correspondences irrelevant to the subject you have been showing your address as “Camp Guwahati” you may please clarify/explain as to how a Junior Asstt. Cum Typist of an unit office have a camp at Guwahati. Therefore you are charged with gross misconduct committing the office of (1) wilful negligence in your part (2) disobeying the order of superior officer i.e. insubordination.” 3. The delinquent in his reply dated 17.3.2001 (Annexure-13) practically admitted the charge of not complying with the transfer order but tried to explain the same on account of non-receipt of his dues from the Corporation. The 3rd charge pertaining to his absence from the place of posting at Numaligarh in Golaghat District and his presence at Guwahati was explained on the legal steps taken by him at Guwahati for amelioration of the grievances of the employees of the Corporation who have not been paid their dues, despite the direction given by this Court on 8.1.2001 (Annexure-8) in the Civil Rule No. 5586/1998. 4. 4. The above explanation furnished by the delinquent was found to be unsatisfactory and accordingly formal disciplinary proceeding was initiated on 2.4.2001 (Annexure-14) and one Mr. H.K. Machary was appointed as the Inquiry Officer. 5. The Inquiry Officer started the proceeding on 17.8.2001 but failed to take any further steps in the matter after the first date and eventually he superannuated from service, without concluding the enquiry. But since the delinquent continued to remain absent from duty since 1.9.1998 and was unavailable at his place of posting at Numaligarh and was camping at Guwahati without complying with the transfer order issued to him on 4.5.2000, a fresh proceeding was started on the same set of allegation through the Management’s notice dated 1.3.2005 (Annexure-21). Suffice is to say that charges in the 2nd show-cause-notice are paramateria same to the three charges in the first show-cause-notice dated 28.2.2001. 6. The delinquent participated in the inquiry but did not adduce any defence evidence in the proceeding. Eventually the Inquiry Officer gave report on 14.12.2005 by declaring that all the charges have been proved against the delinquent. The Managing Director of the Corporation then examined the report and after acceptance of the finding, ordered for removal of the delinquent w.e.f 1.9.1998, through the impugned order dated 16.1.2006 (Annexure-22). 7. The discharge order was challenged by the delinquent through the Title Suit No.830/2006 but the said suit was eventually dismissed by the learned Civil Judge (Jr. Division) No.2, Guwahati on 5.12.2008 (Annexure-24) with the observation that the Civil Court has no jurisdiction to entertain the challenge to the discharge order. Following the dismissal of his suit, the delinquent has filed this petition under Article 226 of the Constitution. 8. The petitioner contends that he was unable to comply with the transfer order and was compelled to stay away from his place of posting at Numaligarh only because the Corporation was unable to pay the salary of their employees and thus the petitioner had no option but to stay in the official quarter allotted to him at Guwahati. Mr. 8. The petitioner contends that he was unable to comply with the transfer order and was compelled to stay away from his place of posting at Numaligarh only because the Corporation was unable to pay the salary of their employees and thus the petitioner had no option but to stay in the official quarter allotted to him at Guwahati. Mr. D. Goswami, the learned Counsel refers to the order passed by this Court on 8.1.2001 in the Civil Rule No.5586/1998 to project that the petitioner and 49 other employees of the Corporation had moved the High Court for getting their salaries and after noticing their difficulties, the Court directed the Corporation to release the unpaid salary to the employees through its order dated 8.1.2001 (Annexure-8). Therefore Mr. Goswami submits that the petitioner must be treated as a victim rather than a guilty employee who committed misconduct. 9. On the other hand, Mr. S.K. Goswami, the learned Counsel submits that the petitioner was offered his salary through written letters by the Management but he failed to appear at his place of posting at Numaligarh to receive his dues. The respondents refer to the judgment of this Court rendered on 18.5.2006 in the Contempt Case No.215/2001 (arising out of the Court’s decision in the Civil Rule NO.5586/1998) to project that the petitioner unauthorisedly remained absent from duty from September 1998 and therefore his salary bills from May 1998 onwards were lying unpaid and that is how, the Court did not find any fault with the employer for non-payment of salary to the petitioner, as he did not attend to his duties at Numaligarh. 10. The functioning of the Corporation was not satisfactory and that is how it was unable to pay the salaries of the employees in time. But eventually the situation became worse and finally the Corporation was declared non-functional in 2006 and the State Government has decided to close down the Government undertaking. 11. In the impugned proceeding the first Inquiry Officer Mr. H.K. Machary failed to proceed with the enquiry and a fresh enquiry had to be ordered on 1.3.2005. From the reply given by the delinquent to the charge-memo, it is apparent that substance of charges have been admitted by him. But he tries to explain his absence from his place of posting and non-compliance with the transfer order, to non-receipt of his salary. 12. From the reply given by the delinquent to the charge-memo, it is apparent that substance of charges have been admitted by him. But he tries to explain his absence from his place of posting and non-compliance with the transfer order, to non-receipt of his salary. 12. The petitioner is also aware of the fact that his reinstatement is not possible since the Corporation itself was closed down in the year 2006. Therefore the learned Counsel Mr. D. Goswami submits that direction be given to disburse the arrear dues of the delinquent, until he was removed from service w.e.f 1.9.1998. 13. Responding to the limited prayer of the petitioner, Mr. S.K. Goswami, the learned Counsel submits that the Corporation was all along willing to disburse the payable dues to the delinquent but only because the petitioner was not cooperating and was not present at Numaligarh, his dues have remained unpaid. But there should be no difficulty to release the dues with cooperation of the petitioner. 14. When the delinquent has admitted his lapses in his reply to the show-cause-cause and his unauthorized absence was notice by this Court in the contempt proceeding, there is little scope to interfere with the disciplinary action taken against the delinquent by the Corporation. Therefore the petitioner’s challenge to the impugned discharge order dated 16.1.2006 (Annexure-22) is held to be devoid of merit. But just because the service of the petitioner was terminated and the Corporation has become defunct since then, the respondents can’t escape their legal obligation to disburse the unpaid dues to the discharged employee and therefore I direct the Corporation to release the admissible arrear dues such as unpaid salary, leave encashment benefits, gratuity and Provident Fund dues upto 1.9.1998 to the petitioner expeditiously and preferably within 8 weeks from today. With this direction, the case stands disposed of without any order on cost.