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2016 DIGILAW 1005 (GAU)

Jyotish Kalita v. State of Assam

2016-11-16

ACHINTYA MALLA BUJOR BARUA

body2016
JUDGMENT AND ORDER : Achintya Malla Bujor Barua, J. Heard Sri D.K. Sarma, learned counsel for the petitioner and Sri N Sarma, learned Standing counsel, Education Department, Assam. 2. The petitioner who was appointed and joined on 24.5.2007 as an Assistant Teacher (Music), in Laduguri Anchalik Janajatiya School is aggrieved by the impugned order dated 21.6.2011 issued under the signature of the president/secretary of the managing committee of Laduguri Anchalik Janajatiya School and the Headmaster of the said school. By the said order dated 21.6.2011, it has been provided that the petitioner was connected with some scandal and he did not report back to duty after expiry of the 3 (three) months medical leave. The order provides that the executive committee recognized the petitioner on 19.2.2011 to be morally characterless teacher and accordingly he was asked as to why he would not be discharged from the post of teacher. The petitioner is aggrieved that on the basis of the said order dated 21.6.2011, it has already been construed that he has been discharged from service. It is the contention of the petitioner that the said order dated 21.6.2011 is actually in the nature of a show-cause notice and it cannot be construed to be an order of discharge. 3. A bare perusal of the last sentence in the said order dated 21.6.2011 would go to show that the petitioner was asked as to why he would not be discharged from the post of the teacher, which, prima-facie, satisfies the court that it is actually in the nature of a show-cause notice. 4. In view of the above, if, on the other hand, the order dated 21.6.2011 is construed to be an order of discharge, the relevant consideration would be whether the required procedure under the rules for passing such order had been followed or not. Again, if the order dated 21.6.2011 is construed to be an order of show-cause, the relevant consideration would be whether the required procedure under the Rules as regards the proceeding pursuant to a show cause had been followed and whether the proceeding had been brought to its logical end or not. 5. Again, if the order dated 21.6.2011 is construed to be an order of show-cause, the relevant consideration would be whether the required procedure under the Rules as regards the proceeding pursuant to a show cause had been followed and whether the proceeding had been brought to its logical end or not. 5. It is an admitted position of the parties that at the relevant point of time when the impugned order of 21.6.2011 was passed, the concerned Laduguri Anchalik Janajatiya School was a non-government educational institution as defined under Section 2G of the Assam Non-Government Educational Institution (Regulation and Management) Act 2006 (here-in-after referred to as Act 2006). It being so, the case of the petitioner is governed by the said Act of 2006 and the Rules framed thereunder, more particularly, the Assam Non-Government Educational Institution (Regulation and Management Rules) 2007 (hereinafter referred to as Rules 2007). It is noticed that the Rules 2007 is a statutory Rule framed under Section 31(1) of the 2006 Act. 6. Section 15 of the 2006 Act, inter alia, provides that no employee of a non-government educational institution shall be dismissed, removed or reduced in rank or terminated without giving him reasonable opportunity of being heard and without the matter being referred to the Managing Committee for its consideration and approval. Rule 15 of the 2006 Rules is quoted hereunder: Section 15 - Appointment and Disciplinary matters: (1) The School authority shall issue appointment letter in the event of any appointment made to any person in regard to its affairs and such appointment letter shall clearly state the terms of appointment, salary and any other conditions of service in respect of such appointment as per Scheme of Management of the institution. (2) No employee of a non-government educational institution shall be dismissed, removed or reduced in rank or terminated without giving him a reasonable opportunity of being heard and without the matter being referred to the Managing Committee for its consideration and approval; Provided that the School Authority may suspend an employee with immediate effect without the prior approval of the Managing Committee, if it is satisfied that such immediate suspension is necessary by reasons of his gross misconduct under the Code of Conduct framed under Section 16. (3) The procedure to be followed in disciplinary matters shall be such as may be prescribed. 7. (3) The procedure to be followed in disciplinary matters shall be such as may be prescribed. 7. Again, the procedure for imposing penalty is provided under Rule 21 of the 2007 Rules, where Rule 21 (a), inter alia, provides that no order imposing any penalty on an employee shall be made except after an enquiry. Rule 21 (a) (i) further provides that the disciplinary authority was required to frame definite charges on the basis of the allegations on which the enquiry is to be held and copy of the charges together with the statements of the allegations are to be furnished to the delinquent employee, who shall be given not more than 2 weeks to file an written statement. Rule 21 (a) (ii) again provides that on receipt of the written statement, or when any such written statement is not received within the specified time, the disciplinary authority may itself inquire into the charges which are not admitted, or refer it to the disciplinary committee for the enquiry. Rule 21 (a) (iii) provides that at the conclusion of the enquiry, the disciplinary committee shall prepare a report of the enquiry with a finding on each of the charges. 8. Thereafter, under Rule 21 (b) the disciplinary authority shall consider the report on each charge and if any of the penalties are to be imposed, it shall give a notice in writing requiring the delinquent to submit such representation and on receipt of the representation the disciplinary authority shall determine as to what penalty is to be inflicted upon the employee and referred the matter to the managing committee for its consideration and approval. Rule 21 of the Rules 2007 is quoted hereunder: "Rule 21. Rule 21 of the Rules 2007 is quoted hereunder: "Rule 21. Procedure for imposing penalty: (a) No order imposing on an employee any penalty shall be made except after an inquiry, held, as far as may be, in the manner specified below: (i) the disciplinary authority shall frame definite charges on the basis of the allegation on which the inquiry is proposed to be held and a copy of the charges together with the statement of the allegations on which they are based shall be furnished to the employee and he/she shall be required to submit within such time as may be specified by the disciplinary authority, but not later than two weeks, a written statement of his/her defence and also to stake whether he desires to be heard in person; (ii) on receipt of the written statement for his/her defence or where no such statement is received within the specified time, the disciplinary authority may itself enquire into such of the charges as are not admitted or if it considers it necessary so to do refer the proceeding to the Disciplinary Committee for enquiry and submit a report to the disciplinary authority with its finding and recommendation: (iii) at the conclusion of the inquiry, the Disciplinary Committee shall prepare a report of the inquiry regarding his/her findings on each of the charges together with the reasons therefore; (b). The disciplinary authority shall consider the record of the inquiry and record its finding, on each charge and if the disciplinary authority is of opinion that any of the penalties should be imposed, it shall,- (i) give him/her notice in writing stating the action proposed to be taken in regard to him/her and calling upon him/her to submit within the specified time, not exceeding two weeks, such representation as he may wish to make against the proposed action; (ii) on receipt of the representation, if any, made by the employee, the disciplinary authority shall determine what penalty is to be inflicted upon the employee and refer the matter to the Managing Committee for consideration and approval; (c) No order with regard to the imposition of a penalty shall be made by the disciplinary authority except after the receipt of the prior approval of the Managing Committee; (d) Any employee of a recognized institution who is aggrieved by any order imposing on him/her penalty of dismissal, removal or termination from service or any penalty may prefer an appeal to the appropriate court." 9. The aforesaid Rule 21 of the 2007 Rules can be compared to Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (for short, 1964 Rules) wherein also an elaborate procedure for conducting a disciplinary proceeding against the delinquent employees is provided. Rule 21 of the 2007 Rules and Rule 9 of the Rule 1964 Rules provides for a procedure for imposing penalty pursuant to a disciplinary proceeding. 10. It may be noticed that Rule 9 of the 1964 Rules provides for an elaborate procedure to be followed, in the event, the disciplinary authority intends to impose any punishment on an employee. The said Rules clearly provides that the delinquent employee would have to be served with a show cause notice with the statement of allegation relating to the charge against the employee and the employee also has to be provided with a copy of the list of documents to be relied upon by the authorities and also a list of witnesses who may depose against the employee. Thereafter the authorities would appoint an enquiry officer, who shall notify the delinquent employee as to the date and time where the proposed enquiry is to be held. Thereafter the authorities would appoint an enquiry officer, who shall notify the delinquent employee as to the date and time where the proposed enquiry is to be held. Further in the enquiry, the delinquent employee is required to be given the opportunity to present his witnesses and materials to defend the charges against him and also the opportunity to cross-examine the witnesses of the disciplinary authority. Thereupon, the enquiry officer would submit an enquiry report for the consideration of the disciplinary authority. Rule 21 of the 2007 Rules also prescribes the procedure that the disciplinary authority shall frame definite charges on the basis of the allegation on which the enquiry is proposed to be held and the copy of the charges along with the statement of allegations are required to be furnished to the employee and thereupon the employee be required to submit his written statement within a period not later than two weeks. Upon receipt of the written statement, the disciplinary authority may itself enquire into the charges which are not admitted or if it considers necessary refers the proceeding of the disciplinary committee for enquiry. At the conclusion of the enquiry, the disciplinary committee is required to prepare a report, which shall be forwarded to the disciplinary authority for its consideration. The disciplinary authority if it is of the opinion that any of the penalty should be imposed, it should give the delinquent employee a notice in writing stating the proposed action to be taken. 11. It is further been provided under Rule 21 that no imposition of penalty shall be made by the disciplinary authority except after the receipt of the prior approval of the Managing Committee. 12. On an inter-se comparison of the provisions of Rule 9 of the 1964 Rules and Rule 21 of the Rule 2007 Rules, it is clearly discernible that the manner and purport of both the aforesaid Rule 9 and Rule 21 are same and the procedure to be adopted for arriving at the penalty to be imposed pursuant to a disciplinary proceeding are same, although, of course, subject to certain minor differences, which by itself may not be material enough to hold that the procedure, in general, between two rules are different. Therefore, it is to be construed that both the Rule 9 of the 1964 Rules and Rule 21 of the 2007 Rules are, perimateria, in nature. 13. Therefore, it is to be construed that both the Rule 9 of the 1964 Rules and Rule 21 of the 2007 Rules are, perimateria, in nature. 13. It may also be noticed that the purport of both Rule 9 of the 1964 Rules and Rule 21 of the 2007 Rules is to provide an adequate mechanism to the delinquent employee that no penalty is imposed upon them without giving them a reasonable opportunity of being heard and to present their cases against the allegations made against them. 14. In K. Narasimhah v. H.C. Singri Gowda, reported in AIR 1966 SC 330 , the Hon'ble Apex Court has held that the nature and design of the statues and the consequence which would follow from construing it the one way to other; would be a relevant consideration to conclude as to whether the given provision of law is mandatory or it is directory. In the instant case, the consequence of the procedure laid down in Rule 21 of the 2007 Rules, as well as, Rule 9 of the 1964 Rules is that the delinquent employee upon which the penalty is sought to be imposed, where in cases it may be that a major penalty of dismissal etc., would be left with no opportunity to controvert the allegations made against such employee, if the prescribed procedure under Rule 21, or Rule 9, as the case may be, is not followed. Therefore, if it is construed that the provisions of Rule 21 of 2007 Rules and Rule 9 of the 1964 is a directory provision, the adverse consequence upon the delinquent employee would be that he would not have any opportunity to controvert the allegations that are made against him. Therefore, the interpretation that the said Rule 21 and Rule 9 are directory would also lead to a situation where there would be violation of the principles of Natural Justice. In the background of such adverse consequence, that may befall the delinquent employee, it would be appropriate to conclude that the provisions of Rule 21 of 2007 Rules and Rule 9 of the 1964 Rules are mandatory in nature. 15. It has been held by this Court in Sri Jalal Uddin Laskar v. State of Assam & Ors., reported in 1995 (II) GLT 371 at paragraph 7, that the provisions of Rule 9 of the 1964 Rules in its entirety is mandatory in nature. 15. It has been held by this Court in Sri Jalal Uddin Laskar v. State of Assam & Ors., reported in 1995 (II) GLT 371 at paragraph 7, that the provisions of Rule 9 of the 1964 Rules in its entirety is mandatory in nature. Paragraph 7 of the said judgment is quoted hereunder: "7. I further find that there was no compliance with Rule 9 (9) of the Assam Services (Discipline & Appeals) Rules, 1964. The requirement of that Rule is that after the receipt of the Enquiry Report the disciplinary authority must agree with each and every finding of the Enquiry Officer it must recover its reason. That also is not available in record. It is settled that Rule 9 of the aforesaid Rules in its entirety is mandatory and non-compliance with Rule 9 shall make an enquiry invalid in the eye of the law. But that is what has taken place in the instant case. So, the first enquiry report falls through and no punishment can be imposed on the basis of this report." 16. In another decision of the Division Bench of this Court, in Ramizuddin Ahmed v. State of Assam & Others, reported in 2006(4) GLT 579, at paragraph 9 it has been held that it is no longer, res integra, that Rule 9 of the 1964 Rules is mandatory and that any action thereunder to sustain a legal scrutiny has to be in meticulous compliance thereof. Paragraph 9 of the said judgment is as under: "9. On a plain reading of the order of dismissal impugned, it is obvious that the disciplinary authority in concluding the charge-levelled to have been proved against the appellant in the enquiry did not make an endeavour to discuss the evidence on record. It is too fundamental to state that a conclusion of any authority having the power to decide any issue to the detriment of any person has to be preceded by a vigilant consideration of all relevant materials supported by reasons. Reasons, as a matter of fact, constitute the gravamen of valid decision, administrative: or judicial. The impugned order is manifestly devoid of above essentially. Reasons, as a matter of fact, constitute the gravamen of valid decision, administrative: or judicial. The impugned order is manifestly devoid of above essentially. Though an endeavour has been made by the respondents in their affidavit to plead that an 'opportunity of hearing had been provided to the appellant on the question of penalty, in our view, the same is not enough even if accepted, to validate the impugned order in view of the above violation of the Rules." 17. As has already been held that the provisions of Rule 9 of the 1964 Rules and the provisions of Rule 21 of the 2007 Rules being, perimateria, in nature and having been framed for the same purport and it having been held by this Court that the provision of Rule 9 of the 1964 Rules are mandatory in nature, it is also held that the provisions of Rule 21 of the 2007 Rules are also mandatory in nature. 18. Having concluded that the provisions of Rule 21 of the Rule 2007 is mandatory in nature, it is to be seen whether, in the instant case, the impugned order of discharge had been passed in compliance of the required procedure prescribed under the Rule 21 of the 2007 Rules. 19. As is discernible from the impugned letter dated 21.06.2016, which is construed by the respondent authorities to be an order of discharge and having discharged the petitioner from service by virtue of the said order, it appears that no other proceeding was conducted against the petitioner other than issuing the said letter dated 21.06.2011. As already noticed, even if the said letter dated 21.06.2011 is construed to be the show cause notice as to why the petitioner should not be discharged from the teacher's post there is no further material on record to indicate that there was any other proceeding against the petitioner pursuant to such purported show cause notice. On the other hand, if the letter dated 21.06.2011 is construed to be an order of discharge, which, in fact, is so construed by the respondents, as the petitioner has been discharged from services, pursuant to the said order, it is equally discernible that the required procedure to be followed under Rule 21 of the 2007 Rules has not been followed for discharging the petitioner from services. 20. 20. As already held that the procedure prescribed under Rule 21 of the 2007 Rules are mandatory, any order of discharge which is passed without following the mandatory procedure prescribed therein would be vitiated and un-sustainable. In that view of the matter, the impugned order of discharge dated 21.06.2011 is held to be vitiated and un-sustainable. 21. From the procedure adopted by the respondent authorities, it is also apparent that while discharging the petitioner from service the Rules of the principles of Natural Justice had not clearly been followed. As held by the Hon'ble Apex Court, non-following the principles of Natural Justice also amounts to an arbitrary order which is in violation of Article 14 of the Constitution of India. In such view of the matter, the impugned order of discharge against the petitioner dated 21.06.2011 is also held to be arbitrary and violative of Article 14 of the Constitution of India. 22. Accordingly, the impugned order of discharge dated 21.06.2011 is hereby set aside and the respondent authorities are directed to take back the petitioner, in service. But, however, the respondent authorities are given the liberty to proceed against the petitioner by following the procedure prescribed by law and take any action against him as may be permissible under law. 23. In the above terms, this writ petition is allowed. However, there shall be no order as to cost.