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2015 DIGILAW 857 (GAU)

Ziaul Islam Sarkar v. State of Assam

2015-07-17

HRISHIKESH ROY

body2015
JUDGEMENT 1. Heard Mr. R.A. Choudhury, the learned counsel appearing for the petitioner. The respondents are represented by Mr. M. Bhagabati, the learned Govt. Advocate, Assam. 2. The petitioner while serving as a Gram Sevak in the Tapattary Development Block was officiating as the Extension Officer (Credit) and a disciplinary proceeding was drawn up against him, by serving a show cause notice under Rule 9(2) of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as ‘the 1964 Rules’) read with Article 311 of the Constitution. By this notice, the petitioner was asked to respond to the five charges mentioned in the notice. The charges were denied by the petitioner in his reply dated 10.12.2003 (Annexure-8) but being dissatisfied with the reply, an Enquiry Officer was appointed to inquire into the charges. 3. The Charge No.1 relating to misappropriation of Rs.21,600/-, which was the loan amount sanctioned for construction of the cow shed, was found to be established. Similarly Charge No.5 relating to unauthorized absence for four (4) days from 22.7.2003 was also declared to be proved. Consequently the disciplinary authority by his order dated 8.12.2004 imposed the penalty of withholding two annual increments with cumulative effect and denied the balance subsistence allowance to the delinquent, for the suspension period. 4. The legality of the disciplinary proceeding was assailed before the appellate authority under Rule 15 of the 1964 Rules and in his appeal memo dated 7.2.2005 (Annexure-10), the delinquent contended that before the Enquiry Officer six witnesses supported the delinquent. However the 7th witness i.e. B.J. Barua, the BDO of the Tapattary Development Block out of grudge, supported the allegation and on the basis of the biased evidence of this witness, the two charges were held to have been proved against the delinquent. 5. The appellant specifically contended that two witnesses namely, Abdul Wahed and Nurul Islam were examined at Guwahati, by the Enquiry Officer and their statements were recorded in petitioner’s absence. Moreover the Enquiry Officer while recording the evidence of the witnesses on 13.9.2004, recorded the statements inside the office of the BDO and the petitioner was kept out of the room and thus he was denied the opportunity for effective participation and cross-examination of the witnesses wasn’t also allowed. 6. Moreover the Enquiry Officer while recording the evidence of the witnesses on 13.9.2004, recorded the statements inside the office of the BDO and the petitioner was kept out of the room and thus he was denied the opportunity for effective participation and cross-examination of the witnesses wasn’t also allowed. 6. Despite the specific contentions raised by the delinquent in his appeal memo, the Appellate Authority through his impugned order dated 7.3.2006 (Annexure-11) summarily rejected the Appeal, without any discussion on the specific pleas urged by the delinquent. 7. Assailing the legality of the disciplinary proceeding, Mr. R.A. Choudhury, learned counsel refers to the procedure for imposing penalties, prescribed under Rule 9 of the 1964 Rules and the counsel reads Sub-Rule (6) to contend that the delinquent must be allowed to adduce his defence evidence and also to cross-examine the prosecution witnesses. But it is argued that examination of the witnesses was done by keeping away the delinquent and in fact some evidence was also recorded at Guwahati, by the Enquiry Officer. Moreover the delinquent was denied any defence assistance and thus a fair opportunity to prove his innocence was denied to him. 8. The merit of the conclusion reached by the Enquiry Officer is also questioned by the learned counsel by projecting that the 7th witness i.e. B.J. Barua, the BDO of the Tapattary Development Block was bearing a grudge against the delinquent by suspecting him to be the informant of the extra-marital affair of this witness with a girl in the neighbourhood of the delinquent, and accordingly it is argued that the conclusion reached by the Enquiry Officer is based on biased evidence. 9. The respondents have not filed any counter affidavit to rebut the allegations and therefore the learned Govt. Advocate Mr. M. Bhagabati is unable to make any substantial argument, in support of the disciplinary proceeding. 10. For imposing penalty on Government employees, an elaborate procedure is prescribed under Sub-Rule (6) of Rule 9 of the 1964 Rules to ensure that a fair opportunity is given. In the instant case, the petitioner was kept out of the office room where the witnesses were examined at the Tapattary Block Office and in fact, statements of two of the witnesses were recorded by the Enquiry Officer at Guwahati. Moreover the petitioner was not given any defence assistance nor he was allowed to cross-examine those witnesses. In the instant case, the petitioner was kept out of the office room where the witnesses were examined at the Tapattary Block Office and in fact, statements of two of the witnesses were recorded by the Enquiry Officer at Guwahati. Moreover the petitioner was not given any defence assistance nor he was allowed to cross-examine those witnesses. The allegation of biasness of B.J. Barua, the BDO of the Tapattary Development Block also brushed aside by the disciplinary authority. This witness is arrayed as the 6th respondent but he is not participating in this proceeding. Moreover the support received by the delinquent from all the other witnesses was conspicuously ignored for reaching the adverse conclusion. 11. From the above analysis it appears that the conclusion was reached by the Enquiry Officer through a unfair proceeding, which is inconsistent with the mandate of Rule 9 of the 1964 Rules. The delinquent was denied a fair and reasonable opportunity to prove his innocence and in fact the adverse conclusion was reached on the basis of evidence given by a biased witness. This certainly caused serious prejudice to the delinquent and more importantly, the departmental proceeding was not conducted in accordance with the laid down norms under the 1964 Rules. Moreover the copy of the inquiry report was not furnished to the delinquent and thus he was denied the opportunity to challenge the conclusion reached by the Enquiry Officer. 12. For the foregoing factors, the impugned departmental proceeding is held to be vitiated in law as there was gross violation of the principle of natural justice and also the procedure laid down under Rule 9 of the 1964 Rules. Consequently the impugned order of penalty is set aside and quashed. However the authorities are given the liberty to commence fresh disciplinary proceeding, if so advised, not later than three months from the date of receipt of this order, strictly in accordance with law, by affording full opportunity to the delinquent. 13. With the above order, this case stands allowed to the extent indicated. No cost.