Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 420 (GAU)

Moloy Bora v. State of Assam & Ors.

2015-04-02

UJJAL BHUYAN

body2015
Ujjal Bhuyan, J. – Heard Mr. N Dutta, learned Senior Counsel assisted by Mr. SK Medhi, learned counsel for the petitioner and Mr. A Thakur, learned Standing Counsel, Personnel Department. 2. Petitioner is the same in both the writ petitions. In the first writ petition i.e., WP(C) No.6666/2014, the prayer made is for a direction to the respondent No. 2 to pass final order on the departmental proceeding drawn up against the petitioner whereas, in the second writ petition i.e., WP(C) No.395/2015, prayer made is for quashing the order dated 08.01.2015 directing fresh inquiry. Further prayer made is for release of Integrity Certificate for consideration of petitioner's appointment by promotion to the Indian Administrative Service (IAS). 3. Petitioner is an Assam Civil Service (ACS) Officer and is presently serving as Principal Secretary, Karbi Anglong Autonomous Council. Show cause notice dated 11.01.2012 was issued to the petitioner by the Principal Secretary to the Govt. of Assam, Personnel (A) Department under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964, alleging that while he was serving as Director of Employment and Craftsman Training, Assam, he had sponsored excess candidates than the number of candidates requisitioned by the respective Departments. The charge related to filling up the vacancies in the post of Junior Assistant and Grade-IV under different Departments. The show cause notice was accompanied by a statement of allegation and lists of documents and witnesses. In the list of documents, an inquiry report of Sri PK Choudhury, IAS, Addl. Chief Secretary, dated 17.06.2011 was mentioned. Petitioner wrote to the disciplinary authority that he was not aware of such inquiry report and sought for a copy of such report. However, written statement of defence was submitted by the petitioner on 11.05.2012 denying the charge levelled against him. It was specifically stated that all decisions were taken by the Selection Committee which were accepted by the petitioner in his capacity as Director of Employment & Craftsman Training being the Member Secretary of the Selection Committee. 4. It appears that the written statement submitted by the petitioner was not acceptable to the disciplinary authority and, accordingly, it was decided to hold a departmental enquiry by appointing Inquiry Officer and Presenting Officer. 5. Inquiry Officer held enquiry at the conclusion of which he submitted his report dated 16.04.2014 to the disciplinary authority. 4. It appears that the written statement submitted by the petitioner was not acceptable to the disciplinary authority and, accordingly, it was decided to hold a departmental enquiry by appointing Inquiry Officer and Presenting Officer. 5. Inquiry Officer held enquiry at the conclusion of which he submitted his report dated 16.04.2014 to the disciplinary authority. Inquiry Officer stated that the recommendations for all the posts had the sanction of the collective decision making of the Selection Committee. Therefore, singling out the petitioner for punitive action may not be justified. It was also pointed out that the Selection Committee had recommended the candidates subject to approval of the Finance Department. Accordingly, Inquiry Officer concluded that petitioner may not be held responsible for forwarding the recommendations of 272 candidates for Junior Assistant and 144 candidates for Grade-IV consequent upon recommendation made by the Selection Committee. As such, petitioner should be exonerated from the charge brought against him. 6. Copy of the enquiry report was forwarded to the petitioner vide the forwarding letter dated 03.05.2014. In response thereto, petitioner submitted his representation dated 09.05.2014 requesting the disciplinary authority to accept the report submitted by the Inquiry Officer and to exonerate him from the charges levelled against him. 7. Since no decision was taken, the first writ petition i.e., WP(C) No.6666/2014 was filed. This Court passed order dated 18.12.2014 issuing notice and observed that respondent No.1 shall pass appropriate order after taking note of all the attending facts and circumstances and in accordance with law. 8. Thereafter, the impugned order dated 08.01.2015 was passed by the Personnel (A) Department. By the said order, the disciplinary authority took the view that the basic charge against the petitioner of sponsoring excess candidates did not find place in the enquiry report. Therefore, Sri VB Pyarelal, IAS, Addl. Chief Secretary to the Govt. of Assam was appointed as the Inquiry Authority to enquire into the charge of sponsoring candidates in excess of the requisitions made by the Heads of Department against the petitioner afresh. By the said order, one Sri Ikramul Hussain, ACS, Deputy Secretary, Govt. of Assam, Personnel (A) Department was appointed as the Presenting Officer. This led to filing of the second writ petition i.e., WP(C) No. 395/2015. 9. This Court by order dated 30.01.2015 admitted the writ petition and stayed the impugned order dated 08.01.2015. 10. Mr. By the said order, one Sri Ikramul Hussain, ACS, Deputy Secretary, Govt. of Assam, Personnel (A) Department was appointed as the Presenting Officer. This led to filing of the second writ petition i.e., WP(C) No. 395/2015. 9. This Court by order dated 30.01.2015 admitted the writ petition and stayed the impugned order dated 08.01.2015. 10. Mr. N Dutta, learned Senior Counsel for the petitioner submits that the course of action adopted by the disciplinary authority is not permissible in law. There is no provision for fresh inquiry under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964. Reference to Para 6:18:1 of the Manual of Departmental Proceeding is totally misplaced. In this connection, learned Senior Counsel has placed reliance on a number of decisions of the Apex Court as well as of this Court. On merit also, learned Senior Counsel has referred to the relevant portion of the enquiry report and submits that the Inquiry Officer had addressed the core allegation against the petitioner and thereafter given his finding. It is not a case of overlooking the allegations made as projected by the disciplinary authority. He, therefore, submits that impugned order dated 08.01.2015 may be quashed and since petitioner's appointment by promotion to the IAS is being held up because of the departmental proceeding, necessary clearance certificate may be directed to be issued by the respondents. 11. Per contra, Mr. Thakur, learned Standing Counsel, Personnel Department submits the enquiry report did not properly deal with the basic allegation against the petitioner, namely, recommending names in excess of the requisitions made which created enormous problem for the Government. Therefore, in the contextual facts of the case, decision to hold fresh enquiry is justified. Submissions made have been considered. Since the challenge is to the order dated 08.01.2015, it would be useful to extract the said order in its entirety, which is as follows: - "Order Whereas an enquiry under rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964 is being held in respect of the charges framed vide Show Cause Notice No.AAP.298/2011/1 dated 11.01.2012 against Shri Moloy Bora, ACS, the then Joint Secretary to the Govt. of Assam, Guwahati Development Department; and Whereas Shri JB Singh, IAS, Principal Secretary to the Govt. of Assam, Panchayat & Rural Development Deptt. of Assam, Guwahati Development Department; and Whereas Shri JB Singh, IAS, Principal Secretary to the Govt. of Assam, Panchayat & Rural Development Deptt. was appointed as Inquiring Authority vide this Department's order No.AAP.298/2011/95 dated 24.07.2012; and Whereas on careful examination of the enquiry report submitted by Shri JB Singh, IAS, it is found that the charge of sponsoring candidates in excess of the requisition made by the Heads of Department did not find place in the enquiry report; and Now, therefore the Governor of Assam in terms of Para 6:18:1 of the Manual of Departmental Proceeding hereby appoints Shri VB Pyarelal, IAS, Addl. Chief Secretary to the Govt. of Assam, as the Inquiring Authority to enquire into the charge of sponsoring candidates in excess of the requisition made by the Heads of Department against Shri Moloy Bora, ACS afresh; and Further, the Governor of Assam in exercise of the power conferred by Sub-Rule (5) of Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964 appoints Shri Ikramul Hussain, ACS, Deputy Secretary to the Govt. of Assam, Personnel (A) Department as the Presenting Officer to present the case in support of the charges before the Inquiring Authority." 12. From a persual of the order dated 08-01-2015, it is seen that the enquiry against the petitioner was held under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 and it has been decided to hold fresh enquiry in terms of para 6.18.1 of the Manual of Departmental Proceeding. Therefore, a brief reference to both the provisions would be in order. 13. Rule 9 lays down the procedure for imposing penalties. It says that no order of penalty shall be imposed on a Government servant except after an enquiry held in the manner provided. The Rule provides for framing definite charges and communicating the same in writing to the Government servant along with a statement of allegation and lists of documents and witnesses. The Government servant is required to submit written statement of defence which is required to be considered by the disciplinary authority. If it is considered necessary to enquire into the charges, the disciplinary authority may itself enquire into the charges not admitted or appoint an Enquiry Officer to hold enquiry into the charges. Appointment of Presenting Officer and Defence Assistant in the enquiry is provided. If it is considered necessary to enquire into the charges, the disciplinary authority may itself enquire into the charges not admitted or appoint an Enquiry Officer to hold enquiry into the charges. Appointment of Presenting Officer and Defence Assistant in the enquiry is provided. Both the sides are entitled to adduce evidence, both documentary and oral, in the enquiry with right of cross-examination of the witnesses. At the conclusion of the enquiry, the Inquiry Officer shall prepare a report of the enquiry, recording its findings on each of the charges enquired into with reasons therefor and submit the same to the disciplinary authority along with the record of the enquiry. Rule 9(9), which is relevant, says that the disciplinary authority, if it is not the Inquiring Authority, shall consider the record of the enquiry and record its findings on each charge. Thereafter, if it is considered necessary, penalty, either major or minor, may be imposed. 14. Paras 6:18:1 and 6:18:2 of the Manual of Departmental Proceeding read as under:- " 6.18.1- Where the Disciplinary Authority, on a contention raised by the person proceeded against or otherwise finds that any material irregularities have been committed and that they have caused or they may cause prejudice to the person charged or such irregularities are likely to vitiate the proceedings, it will consider- (1) Whether the whole enquiry should be set aside and a fresh enquiry started denovo : or (2) Whether the enquiry be set aside from the stage of occurrence of the irregularity and it be ordered to be started afresh from that particular stage. 6.18.2 - As far as possible, where ends of justice can be served and so long as the person proceeded against is given reasonable opportunity of being heard, efforts should be made to resume the enquiry from the stage at which the irregularity occurred". 15. The law relating to holding of fresh enquiry on the same set of charges after discarding or ignoring the previous enquiry is well settled. A Constitution Bench of the Hon'ble Supreme Court in the case of KR Deb v. The Collector of Central Excise, Shillong, reported in AIR 1971 SC 1447 , while dealing with the provisions of Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, which deals with imposition of penalty on Govt. A Constitution Bench of the Hon'ble Supreme Court in the case of KR Deb v. The Collector of Central Excise, Shillong, reported in AIR 1971 SC 1447 , while dealing with the provisions of Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, which deals with imposition of penalty on Govt. servant after holding of enquiry and which provides for holding further enquiry if the situation warrants, held that Rule 15 thereof does not contemplate holding of fresh enquiry on the ground that the earlier enquiry was not proper or did not appeal to the disciplinary authority. In the facts of that case, the Apex Court observed that the Collector instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only unwarranted by the rules, but was harassing to the appellant. 16. In Union of India v. KD Pandey, reported in (2002) 10 SCC 471 , the Apex Court drew a distinction between a second enquiry and a further enquiry on the same set of charges and materials on record. It was held that second enquiry was not permissible and if such a process is allowed, the enquiries can go on perpetually until the view of the enquiry authority is in accord with that of the disciplinary authority and it would be an abuse of the process of law. 17. Similar view has been taken by the Apex Court in a recent decision reported in (2014) 10 SCC 589 (Vijay Shankar Pandey v. Union of India & Anr.). It has been held that non-acceptability of the enquiry report submitted by the Inquiry Officer cannot be a ground for rejecting the enquiry report and ordering second enquiry. 18. In Bidyut Buragohain v. State of Assam, reported in 2005 (3) GLT 457, this Court was examining the provisions of Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964, more particularly Rule 9(9) thereof. It has been held that there is no specific power under Rule 9 empowering the disciplinary authority to hold a fresh/de novo enquiry in case the disciplinary authority is in disagreement with the finding of the Inquiry Officer. The Rules are conspicuously silent in this regard and no such power has been specifically or impliedly conferred. It has been held that there is no specific power under Rule 9 empowering the disciplinary authority to hold a fresh/de novo enquiry in case the disciplinary authority is in disagreement with the finding of the Inquiry Officer. The Rules are conspicuously silent in this regard and no such power has been specifically or impliedly conferred. Comparing the provisions of Rule 15 (9) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 and Rule 9(9) of the Assam Services (Discipline & Appeal) Rules, 1964, it was held that the two provisions are in pari materia. While a further enquiry may be permissible by directing the Inquiry Officer to examine further witnesses, a fresh enquiry into the same set of allegations by discarding the earlier enquiry report is not contemplated. No specific power to hold a second enquiry into the same set of allegations, which were earlier enquired into have been vested with the disciplinary authority under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964. Further, provisions of Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964 have been held to be mandatory provisions. 19. In a later judgment in the case of Bhupati Ranjan Mudoi v. State of Assam & Anr., reported in 2012 (3) GLT 394, this Court referred to the decision in Bidyut Buragohain (Supra) as well as Para 6:18:1 of the Manual of Departmental Proceeding. After quoting the said paragraph from the Manual of Departmental Proceeding, this Court held that the said provision would be applicable only when the disciplinary authority finds that any material irregularity has been committed and the same might cause prejudice to the person charged or such irregularity is likely to vitiate the departmental proceeding. Thus the said provision is intended to remove any prejudice caused to the Government servant against whom the departmental proceeding in initiated. However, even otherwise, it has been held that the said provision cannot be used to override the mandatory provision of Rule 9 of the Assam Services (Disciplinary & Appeal) Rules, 1964. Having noticed the legal position as above, we may revert back to the facts of the present case. However, even otherwise, it has been held that the said provision cannot be used to override the mandatory provision of Rule 9 of the Assam Services (Disciplinary & Appeal) Rules, 1964. Having noticed the legal position as above, we may revert back to the facts of the present case. Since the disciplinary authority took the view that the charge of sponsoring candidates in excess of the requisition made by the Heads of Department was not gone into by the Inquiry Officer, it would be apposite to refer to the relevant portion of the Inquiry report, which reads as under: - "b. The number of posts for recommendation to the heads of departments for the post of Junior Engineers (272) and Grade IV (144) had been finalised on the basis of the vacancy position along with requisition letters received from different heads of departments as duly scrutinised by the Selection Committee under the chairmanship of Director Land Records and Survey in its meeting held on 18.02.2009. Sh. Moloy Bora, Director Employment & Craftsman Training, had served as Member Secretary of this Selection Committee. The recommendation for these posts have the sanction of the collective decision making in the said Selection Committee. Therefore, singling out Sh. Moloy Bora exclusively for the acts of omission and commission of the said Selection Committee for punitive action may seem unjust. c. Letter No.E/E-18/05/09/2130 Dated 20th Feb.2009 of Sh. Moloy Bora, Director Employment & Craftsman Training addressed to Heads of Departments clearly states that the Selection Committee had recommended the candidates subject to Finance Department approval and other necessary formalities. This letter shows that the merit list is recommendatory and due diligence with regard to Finance (SIU) Department approval and other necessary formalities rests with the respective heads of departments. The said Selection Committee is primarily responsible for the proper selection process and the purity of the merit list. The appointments based on the due approval of Finance (SIU) Department and other relevant formalities fall in the domain of the heads of departments. 7. Conclusion In the light of the foregoing, Sh. Moloy Bora, the then Director Employment & Craftsman Training may not be held responsible for forwarding the recommendations for 272 Junior Assistant candidates and 144 Grade-IV candidates to the respective heads of department consequent to the recommendation made in the meeting of the said Selection Committee held on 18.02.2008. 7. Conclusion In the light of the foregoing, Sh. Moloy Bora, the then Director Employment & Craftsman Training may not be held responsible for forwarding the recommendations for 272 Junior Assistant candidates and 144 Grade-IV candidates to the respective heads of department consequent to the recommendation made in the meeting of the said Selection Committee held on 18.02.2008. Accordingly, he may be exonerated from the charges/allegations levelled against him vide order No.AAP.298/2011/95 dated 24th July, 2012, Department of Personnel, Govt. of Assam." 21. Therefore, from the above, it is crystal clear that the Inquiry Officer had gone into the basic allegation against the petitioner and thereafter gave his finding. If the findings are not acceptable to the disciplinary authority, the latter is not powerless to meet the situation. The law on this point is quite clear. However, it is not for the Court to suggest the course of action to be taken by the disciplinary authority in such a situation. But, holding a de novo/fresh enquiry on the same set of charges on the ground that the previous enquiry report is not acceptable to the disciplinary authority is not permissible and is contrary to the law laid down by the Apex Court. 22. For all the aforesaid reasons, impugned order dated 08.01.2015 cannot be sustained. The same is accordingly set aside and quashed. 23. From the record of WP(C) No. 6666/2014, it is seen that petitioner was included in the select list of 2012 as well as 2013 for appointment by way of promotion to the IAS. However, inclusion of the petitioner's name in the select list was made provisional subject to clearance in the disciplinary proceeding pending against him and grant of Integrity Certificate by the State Govt. Since the impugned order dated 08.01.2015 has been set aside, there is now no impediment on the part of the State Govt. to grant the Integrity Certificate to the petitioner. Both the writ petitions are accordingly allowed, but without any order as to costs.