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2015 DIGILAW 795 (GAU)

Md. Anwar Hussain v. State of Assam

2015-06-23

K.SREEDHAR RAO, P.K.SAIKIA

body2015
JUDGMENT P.K. Saikia, J. This appeal is directed against the judgment dated 08.04.2014 passed by learned Single Judge in WP( C) No. 2399 of 2011 dismissing the petition filed by appellant as being the petitioner therein seeking quashment of punishment imposed upon him in the form of his dismissal from service. 2. We have heard Mr. S.S. Dey, learned Senior Counsel assisted by Mr. M. Nath for the petitioner. We have also heard R. Mazumdar, learned Standing Counsel, Education. 3. The facts projected by the appellant herein (hereinafter referred to as the writ petitioner) are that on the allegation that he had issued several letters appointing different persons as teachers in the LP ME Schools in the district of Sivasagar, a departmental proceeding was initiated against him and such departmental proceeding had culminated with his dismissal from service. 4. The petitioner admitted that he had issued the letters aforesaid which were alleged to be issued not in accordance with the prescription of Service Rule, But he contends that he did so under the authority of superior officers, and as such, he could not have been inflicted punishment much less punishment with his dismissal from service. 5. The petitioner further submits that the entire departmental proceeding was illegal for reasons more than one. They are (i) submission of enquiry report before imposition of penalty, (ii) denial of right to get 2nd show-cause notice before imposition of major penalty of dismissal from service without prior consultation with the APSC as well as (iii) punishment which was grossly dis-proportionate to the alleged mis-conduct on the part of the petitioner. 6. It has also been contended that the disciplinary proceeding needs to be quashed also on the ground that the Disciplinary Authority differs with the finding of Enquiry Officer and chose to inflict punishment aforesaid but without any reason as to why the Disciplinary Authority had to differ with the finding of the Enquiry Officer. 7. 6. It has also been contended that the disciplinary proceeding needs to be quashed also on the ground that the Disciplinary Authority differs with the finding of Enquiry Officer and chose to inflict punishment aforesaid but without any reason as to why the Disciplinary Authority had to differ with the finding of the Enquiry Officer. 7. The above conduct on the part of the Disciplinary Authority requiring this Court to set aside the punishment which was imposed on the appellant herein also assailed on the ground that the finding of the disciplinary authority differs from the finding arrived at by the Enquiry Officer and in spite of that without recording any reason, the Enquiry Officer chose to hold the delinquent guilty of charges and imposed on him the punishment as serious as dismissal from service without recording a finding as to why the disciplinary authority had to differ with the finding of the Enquiry Officer which makes the entire enquiry unsustainable in law. 8. We have considered the submissions, advanced by the learned counsel for the parties. The learned counsel for the appellant/writ petitioner, during the course of argument, submits that since the petitioner had already retired from service, since the punishment, imposed upon him is found to be grossly disproportionate and since he suffered from several mis-fortunes, such as, the death of his son, the punishment inflicted upon him in the form of his dismissal from service needs to be modified to a punishment in the form of compulsory retirement with consequential benefits, even if one assumes for the sake of argument that charges against the petitioner stood established. Such a proposal is not objected to by the learned counsel for the State-respondents. 9. On considering the submissions, advanced by the learned counsel for the parties, having regard to the other facts, stated above, we are of the opinion that in the interest of justice as well on humanitarian grounds, the punishment, in form of dismissal from service needs to be converted to compulsory retirement with consequential benefits. 10. Accordingly, the punishment imposed upon the appellant/writ petitioner in the form of dismissal form service stands modified to compulsory retirement with legally entitled consequential benefits. 10. Accordingly, the punishment imposed upon the appellant/writ petitioner in the form of dismissal form service stands modified to compulsory retirement with legally entitled consequential benefits. However, the period of his absence from the date of suspension till his retirement will not be treated as period on duty, and as such, he will not be entitled to any back wage during the period aforementioned. 11. In the result, the appeal is partly allowed, however, without any cost. In view of order passed today in WA No. 187/2014, the Misc. Case stands disposed of.