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2015 DIGILAW 832 (GAU)

Sadhan Kumar Baishya v. State of Assam

2015-07-14

UJJAL BHUYAN

body2015
Judgment : Heard Mr. BD Konwar, learned Senior Counsel assisted by Mr. M Khan, learned counsel for the petitioner and Mr. BJ Talukdar, learned Govt. Advocate, Assam. 2. This petition challenges the order of penalty of compulsory retirement imposed on the petitioner. 3. At the relevant point of time, petitioner was serving as Jailor of Karimganj District Jail. An anonymous complaint was received by the High Court Registry against the petitioner. It was alleged that petitioner was indulging in corrupt practices with the help of two life convicts lodged in the Karimganj District Jail. Reports from the District Judge, Karimganj and Chief Judicial Magistrate were called for and received. As per the reports, allegation of felling of valuable trees within the campus of the jail by the petitioner with the help of two life convicts was found to be true. District Judge, Karimganj in his report also stated that the allegation that life convicts managed to get out of jail was correct. 4. In view of the seriousness of the allegation, a suo moto proceeding was initiated by this Court, which was registered as WP(C) No.676/2009. 5. Simultaneously, Inspector General of Prisons, Assam acting as the disciplinary authority issued show cause notice dated 04.06.2011 to the petitioner under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964 read with Article 311 of the Constitution of India as to why any of the penalties prescribed in Rule 7 of the said Rules should not be imposed on the petitioner on the following charges:- “Charge No.1 : That in your capacity as Jailor of District Jail, Karimganj you were responsible for due observance of the prescribed rules and regulations with regard to the management of the Jail. However, in gross violation of Rules 572 and 580 of AJM, you indulged and allowed some convicts to move out of jail even after lock up without any guard and without authority. You are, therefore, charged with gross violation of Rules 572 and 580 of Assam Jail Manual. Charge No.2 : You had cut some valuable trees of the Jail campus of District Jail, Karimganj through convicts and sold the trees in the market, but did not deposit sale proceed to Treasury and thereby you violated Rule 739 and Rule 741 of Assam Jail Manual. You are, therefore, charged with gross violation of Rules 739 and 741 of Assam Jail Manual. You are, therefore, charged with gross violation of Rules 739 and 741 of Assam Jail Manual. Charge No.3 : Through convicts you caught and sold fish of jail pond and did not deposit the sale proceed to Treasury. You are, therefore, charged with gross violation of Rule 741 of Assam Jail Manual for not depositing sale proceed to Treasury. Charge No.4 : You sold vegetables of Jail garden without depositing the sale proceed to Treasury. So, you are again charged with gross violation of Rule 741 of AJM for not depositing the sale proceed of vegetables to Treasury. Charge No.5 : You took bribe from convicts to forward their applications for leave and emergency release. So, you are charged for getting illegal gratification. Charge No.6 : You allowed some convicts to take liquor and ganja etc. inside the Jail violating Rule 42 of the Prisons Act, 1894. You are, therefore, charged under Rule 42 of the Prisons Act, 1894 for allowing to introduce prohibited article into jail.” Along with the show cause notice, a statement of allegation with list of documents and list of witnesses were annexed. Petitioner submitted his show cause reply dated 18.06.2011 denying the allegations levelled against him. 6. The reply of the petitioner was not found to be satisfactory and accordingly the disciplinary authority decided to hold departmental proceeding against the petitioner. Consequently, order dated 27.06.2011 was passed placing the petitioner under suspension under Rule 6 (1) (a) of the Assam Services (Discipline & Appeal) Rules, 1964, pending disposal of the departmental proceeding. Thereafter, Inquiry Officer and Presenting Officer were appointed to conduct the inquiry. 7. Inquiry Officer conducted the inquiry and on completion of the same submitted his report to the disciplinary authority on 08.08.2011. In his report, the Inquiry Officer held that out of six charges brought against the petitioner, only charge No.1 stood proved and the other charges could not be proved. 8. On the basis of the inquiry report, the Inspector General of Prisons, Assam acting as the disciplinary authority imposed the penalty of stoppage of promotion for three years on the petitioner. Petitioner was reinstated in service and posted as Jailor of Mahendra Nagar Open Air Jail, Jorhat. 9. 8. On the basis of the inquiry report, the Inspector General of Prisons, Assam acting as the disciplinary authority imposed the penalty of stoppage of promotion for three years on the petitioner. Petitioner was reinstated in service and posted as Jailor of Mahendra Nagar Open Air Jail, Jorhat. 9. This Court in the suo moto proceeding, however, took the view that the decision to impose penalty of stoppage of promotion for three years was patently irrational and absurd in view of the conclusion of the Inquiry Officer vis-a-vis charge No.1. The Court passed order dated 14.11.2011 observing that the disciplinary authority appeared to have failed to perform his duty in dealing with the matter and accordingly directed the State of Assam to review the penalty imposed on the petitioner and also to consider taking action against the disciplinary authority. 10. Thereafter Secretary to the Govt. of Assam issued notice to the petitioner on 17.02.2012 informing him that the competent authority had reviewed the penalty imposed on him and on review it was decided to award the penalty of compulsory retirement on him. Petitioner was asked to submit his representation against the proposed penalty. In response thereto, petitioner submitted detailed representation on 27.02.2012 requesting the authority not to impose the proposed penalty of compulsory retirement. Thereafter, notification dated 07.03.2012 was issued by the Commissioner & Secretary, Govt. of Assam, Home and Political Department imposing the major penalty of compulsory retirement on the petitioner. 11. In view of the aforesaid order passed by the State, the suo moto proceeding was closed by this Court on 16.03.2012. 12. It is against this order of penalty that the present writ petition has been filed. 13. Case was admitted for hearing on 10.04.2012. While admitting the writ petition, this Court observed that if petitioner withdraws the compulsory retirement benefit, the same would be without any prejudice to the rights and contentions made in the writ petition. 14. Respondent No. 2 has filed counter-affidavit. It is stated that due procedure was followed in the conduct of the departmental proceeding, including in the inquiry and petitioner was given all opportunity to defend his case. It is further stated that when the initial penalty was reviewed following the order of this Court, petitioner was given opportunity of personal hearing, which he however did not avail. It is stated that due procedure was followed in the conduct of the departmental proceeding, including in the inquiry and petitioner was given all opportunity to defend his case. It is further stated that when the initial penalty was reviewed following the order of this Court, petitioner was given opportunity of personal hearing, which he however did not avail. Further contention is that the penalty imposed is commensurate with the gravity of the offence, which has been established following a full-fledged departmental proceeding. 15. Petitioner has filed reply affidavit contending that on the basis of the evidence on record, the view taken by the Inquiry Officer that charge No.1 brought against the petitioner stood proved is wholly untenable. On the basis of the evidence adduced by the prosecution witnesses, it cannot be said with any degree of certainty that charge No.1 against the petitioner stood proved. In that view of the matter, penalty imposed on the petitioner is without any justification and requires interference by this Court. 16. In the course of hearing, petitioner filed an additional-affidavit urging a new ground which was not taken up in the writ petition. The additional-affidavit was filed on 26.03.2015. It is contended that the disciplinary authority did not furnish a copy of the inquiry report to the petitioner before holding him guilty of charge No.1 and imposing the penalty. Relying on the decision of the Apex Court in Managing Director, ECIL, Hyderabad Vs. B. Karunakar, reported in (1993) 4 SCC 727 , it is contended that denial of a copy of the report of Inquiry Officer before the disciplinary authority took the decision holding the petitioner guilty of charge no.1 amounts to violation of the principles of natural justice which has vitiated the impugned penalty. Copy of the additional-affidavit was furnished to the learned Govt. Advocate. 17. On 26.03.2015, when the case was taken up for consideration, this Court took the view that the new ground taken is on a pure question of law and, therefore, the petitioner was permitted to urge the new ground taken in the additional-affidavit. 18. Mr. Copy of the additional-affidavit was furnished to the learned Govt. Advocate. 17. On 26.03.2015, when the case was taken up for consideration, this Court took the view that the new ground taken is on a pure question of law and, therefore, the petitioner was permitted to urge the new ground taken in the additional-affidavit. 18. Mr. BD Konwar, learned Senior Counsel for the petitioner submits that denial of a copy of the inquiry report to the petitioner before the disciplinary authority took the decision to accept the inquiry report holding him guilty of charge No.1 was in gross violation of the principles of natural justice as explained by the Apex Court in the case of Managing Director, ECIL, Hyderabad (Supra) particularly in paragraph 29 thereof. He submits that such violation of the principles of natural justice goes to the root of the matter vitiating the decision making process and, therefore, impugned penalty should be interfered with. Referring to the evidence on record, including the evidence of the prosecution witnesses, learned counsel submits that on a careful analysis of the said evidence, it becomes evident that the view taken by the Inquiry Officer that charge No.1 against the petitioner stood proved appears to be wholly untenable and unjustified. He finally submits that petitioner has been denied a fair opportunity and impugned penalty has been imposed by the competent authority without proper appreciation of the materials on record. 19. Mr. Talukdar, learned Govt. Advocate on the other hand submits that denial of a copy of the inquiry report by itself will not vitiate the departmental proceeding, including the penalty imposed. Petitioner has to prove to the satisfaction of the Court that he was prejudiced because of non-furnishing of a copy of the inquiry report. In any case, he submits that considering the gravity of the charge, which stood established in a full-fledged domestic inquiry, which was monitored by this Court, it cannot be said that the penalty imposed is disproportionate to the gravity of the offence. In such circumstances, interference by the Court may not be justified. 20. In his reply, Mr. In any case, he submits that considering the gravity of the charge, which stood established in a full-fledged domestic inquiry, which was monitored by this Court, it cannot be said that the penalty imposed is disproportionate to the gravity of the offence. In such circumstances, interference by the Court may not be justified. 20. In his reply, Mr. Konwar, learned Senior Counsel for the petitioner submits that prejudice to the petitioner is evident inasmuch as had a copy of the inquiry report been served on the petitioner, he would have satisfied the disciplinary authority that the finding arrived at by the Inquiry Officer was erroneous in view of the evidence on record which could not be relied upon. This opportunity was denied to him which vitiated the decision making process. 21. Submissions made have been considered. I have also perused the materials on record. 22. Basic facts are not in dispute. 23. In the case of Managing Director, ECIL, Hyderabad (Supra), a Constitution Bench of the Supreme Court has clarified the position following amendment of Article 311 of the Constitution of India brought by the 42nd amendment that though the second show cause notice prior to imposition of penalty has been done away with the delinquent employee still has a right to reply to the findings of the Inquiry Officer before acceptance of the same by the disciplinary authority. Response of the delinquent employee would be inadequate in the absence of a copy of the inquiry report. It is in such circumstances that the Apex Court has held that even after the 42nd amendment, a delinquent employee would still be entitled to a copy of the inquiry report so that he can submit his response to the report of enquiry to the disciplinary authority before a decision is taken either to accept the inquiry report or not. Once a decision is taken, it would no longer be necessary for the disciplinary authority to issue further notice to the delinquent employee on the penalty proposed. Relevant portion of the judgment in Managing Director, ECIL, Hyderabad (Supra) is extracted hereunder:- “25. Once a decision is taken, it would no longer be necessary for the disciplinary authority to issue further notice to the delinquent employee on the penalty proposed. Relevant portion of the judgment in Managing Director, ECIL, Hyderabad (Supra) is 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 his 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 inquiry 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 inquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusion. 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 the 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. It is negation of the tenets of justice and the 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 inquiry 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 inquiry 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 conclusion, 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 inquiry 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. 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. 28. The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a “reasonable opportunity of being heard in respect of the charges against him”. The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states 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”, it in effect accepts two successive stages of different scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee’s reply to the enquiry officer’s report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-Second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz, the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed where also tentative. All that has happened after the Forth-Second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer’s report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges. 29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice”. 24. Admittedly, in this case, copy of the inquiry report was not furnished to the petitioner. Petitioner was thus denied reasonable opportunity to prove his innocence which is a breach of the principles of natural justice. While Mr. Talukdar, learned Govt. Advocate may be right in pointing out that denial of a copy of the inquiry report, would not ipso facto lead to the conclusion that it had vitiated the departmental proceeding, it will however ill suit the disciplinary authority to raise this plea of defence after denying a copy of the inquiry report to the delinquent employee. Talukdar, learned Govt. Advocate may be right in pointing out that denial of a copy of the inquiry report, would not ipso facto lead to the conclusion that it had vitiated the departmental proceeding, it will however ill suit the disciplinary authority to raise this plea of defence after denying a copy of the inquiry report to the delinquent employee. This is an aspect which the Court is required to be satisfied and not for the disciplinary authority to put up as a plea of defence after having denied a copy of the inquiry report to the delinquent. 25. In a recent decision of this Court in Shri Sagar Chandra Das Vs. NEEPCO, WP(C) No.3462/2009, decided on 27.04.2015, this Court held as under:- “29. It is true that even in the case of Managing Director, ECIL (Supra), it was held that prejudice should be caused to the employee on account of denial of the inquiry report before acceptance of the report and imposition of penalty. It cannot be treated as a mechanical formality that in every case of non-furnishing of the inquiry report, the penalty should be set aside and the employee should be reinstated with all back wages. To that extent, learned Senior Counsel for the respondents is right. Principles of natural justice cannot be put in a straight jacket formula. It is a flexible rule, which has undergone significant changes in recent years. But at the same time, it has to be borne in mind that rules of natural justice are placed at a high pedestal and is sacrosanct in the scheme of dispensation of justice. It is integral and basic to the rule of law so much so that rules of natural justice form the cardinal principle of any civilized system of jurisprudence. Observance of the rules of natural justice is the norm and non-observance is the exception. Test of prejudice is an exception to the rules of natural justice. It cannot be elevated or given a higher status to overshadow the rules of natural justice itself. Moreover, in so far test of prejudice is concerned, it is a matter between the delinquent employee and the Court. Ultimately, it is the Court which must be satisfied that the employee had suffered prejudice because of non-furnishing of a copy of the inquiry report. Moreover, in so far test of prejudice is concerned, it is a matter between the delinquent employee and the Court. Ultimately, it is the Court which must be satisfied that the employee had suffered prejudice because of non-furnishing of a copy of the inquiry report. It is not for the employer or the disciplinary authority to take up test of prejudice as a plea of defence. In the case of SL Kapoor Vs. Jagmohan & Ors., reported in (1980) 4 SCC 379 , it was held that it ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. It is not open to the disciplinary authority to first deny a copy of the inquiry report to the delinquent and then take the plea that no prejudice was caused to the delinquent because of non-furnishing of a copy of the inquiry report. Otherwise, this will amount to rubbing salt to wound. As discussed above, this is a matter which is within the discretion of the Court while exercising the power of judicial review under Article 226 of the Constitution of India.” 26. There is no inflexible rule to judge the test of prejudice. Whether prejudice has been caused to the employee or not on account of denial of the report to him has to be considered on the facts and circumstances of the case. In the present case, in the absence of a copy of the inquiry report, petitioner was prevented from making a representation before the disciplinary authority pointing out the flaws in the enquiry report relating to the finding as regards charge No.1. In the process, the views of the petitioner were not before the disciplinary authority when he took the decision to accept the report. This itself was a serious flaw in the decision making process. In the facts and circumstances of the present case, Court is of the view that non-furnishing of a copy of the inquiry report to the petitioner caused prejudice to him which has vitiated the impugned decision making process. 27. The subsequent notice dated 17.02.2012 issued to the petitioner by the Secretary, Govt. In the facts and circumstances of the present case, Court is of the view that non-furnishing of a copy of the inquiry report to the petitioner caused prejudice to him which has vitiated the impugned decision making process. 27. The subsequent notice dated 17.02.2012 issued to the petitioner by the Secretary, Govt. of Assam, Home and Political Department calling upon the petitioner to submit representation on the proposed penalty was not called for in view of the amended Article 311 of the Constitution of India as explained by the Apex Court in Managing Director, ECIL, Hyderabad (Supra). What was required was a notice to the petitioner along with a copy of the inquiry report prior to the decision taken to accept the inquiry report. As already noticed above, this having not been done, the decision making process culminating in the decision to impose the penalty of compulsory retirement stands vitiated. 28. In the light of the above discussion, Court is of the view that matter should go back to the disciplinary authority to be considered afresh from the stage of consideration of the response of the petitioner on the inquiry report. 29. Accordingly and in the light of the above, impugned order of penalty dated 07.03.2012 is set aside and quashed. Petitioner shall submit his representation on the inquiry report before the Commissioner & Secretary to the Government of Assam, Home and Political Department within a period of four (4) weeks from today, whereafter, the said authority shall consider the same along with all other relevant materials and pass a fresh order in accordance with law. Till such decision is taken, petitioner shall be deemed to be in suspension. 30. Writ petition is accordingly allowed to the extent indicated above. No costs.