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2016 DIGILAW 109 (GAU)

Pranab Routh v. State of Assam

2016-02-16

MANOJIT BHUYAN

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JUDGMENT AND ORDER : Manojit Bhuyan, J. At the relevant time, the petitioner Sri Pranab Routh was working as a Lower Division Assistant (LDA) in the Officer of the Deputy Inspector of Schools, Hojai, in the District of Nagaon. He was placed under suspension by order dated 29.08.2002 on ground that he could not produce his original appointment letter. For the purpose of initiating disciplinary proceedings against him, the Deputy Inspector Schools, Hojai issued Show Cause Notice on 29.06.2005 as to why penalties prescribed under Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964 (for short, referred to as "the Rules of 1964") should not be inflicted on him. In the said Show Cause Notice, it was stated that the petitioner had worked as Primary School Teacher at Sarupathar L.P. School under the Office of the Block Elementary Education Officer, Kothiatoli. He was asked on several occasions to produce the original appointment letter and the transfer orders and that he failed to produce the same. The said documents were required to ascertain the genuineness of his appointment and transfer orders. It is also indicated in the Show Cause Notice that the said verification exercise had been taken on receipt of certain reliable report regarding his appointment letter and transfer orders, which appeared to be doubtful. The petitioner was allowed to submit written statement in defence within 10(ten) days and to show cause as to why he should not be terminated from service. Along with the said Show Cause Notice, the petitioner was also served with the Statement of Allegations. Reply to the Show Cause Notice was made on 20.07.2005. It was stated that in so far as the transfer orders are concerned, he had submitted the same on 05.06.2002. As regards his original order of appointment, petitioner replied that the same was lost at the time of his shifting to Hojai. However, the petitioner contended that a copy of the same was available in his Service Book as well as in the Office records maintained in the Office of the Deputy Inspector of Schools, Silchar. A categorical statement was also made that the report on which the verification exercise was undertaken, copy thereof was not furnished to him. However, the petitioner contended that a copy of the same was available in his Service Book as well as in the Office records maintained in the Office of the Deputy Inspector of Schools, Silchar. A categorical statement was also made that the report on which the verification exercise was undertaken, copy thereof was not furnished to him. Prayer was made that further action in the matter be kept in abeyance until the petitioner can file a detailed and effective reply after being furnished with a copy of the said report. What followed thereafter, is the issuance of the impugned order of dismissal dated 08.04.2010 under the hand of the Director of Elementary Education, Assam. The said impugned order dated 08.04.2010 shows that a hearing had taken place in the Directorate on 30.11.2010 (sic) and in the said hearing the petitioner had explained as to how the appointment and transfer orders got lost. The said impugned order also took into consideration a letter of the Deputy Inspector of Schools, Silchar dated 12.05.2006 and also the fact that the Head Teacher of 60 Tupkhana L.P. School had denied to the effect that no teacher named as Pranab Routh joined and worked in the said school. On examination of the written statement of defence and materials on record, the Director of Elementary Education, Assam found that the appointment and transfer orders shown by the petitioner were fraudulent. Accordingly, penalty of dismissal from service under Rule 7 of the Rules of 1964 was imposed. It is, this order that is being put to test in the present writ proceedings. 2. The gangplank of the submission of Mr. M. Dutta, learned counsel or the petitioner, is with regard to non-compliance of the mandatory provisions under Rule 9 of the Rules of 1964. Mr. Dutta submits that right from the start, the petitioner was not furnished with the alleged report on the basis of which verification exercise was undertaken nor the letter of the Deputy Inspector of Schools, Silchar dated 12.05.2006 and the information received from the Head Teacher of 60 Tupkhana L.P. School, which formed the basis for imposing punishment upon the petitioner by arriving at a decision that the appointment and transfer orders were fraudulent. It is also contended that neither any list of witnesses nor documents were furnished along with the Statement of Allegations nor any enquiry was conducted or Inquiry Officer appointed in terms of the procedure laid down under Rule 9 of the aforesaid Rules of 1964. While arriving at the impugned decision, no witnesses were examined, not to speak of affording opportunity to the petitioner to examine any material witlessness. Submission of Mr. Dutta is that having regard to the above, the impugned order dated 08.04.2010 is ex facie illegal and non est in law. Prayer is made that order be passed for setting aside the impugned order with direction to the respondents to allow the petitioner to continue in service with full back wages. 3. Mr. S.P. Bhattacharjee, learned counsel representing Elementary Education Department, have produced the records. Until this date, no affidavit-in-opposition has been filed by the State respondents despite opportunities being given by this Court. 4. The records so produced do not show that any enquiry in terms of Rule 9 of the Rules of 1964 had been carried out. There is no record to show that any Inquiry Officer had been appointed. Also, there is no record to show that the petitioner was served with list of witnesses or list of documents on which the respondents wanted to rely upon to establish any case against the petitioner. Records also do not reveal that the alleged report forming the basis of verification exercise or the information gathered from the Deputy Inspector of Schools, Silchar vide letter dated 12.05.2006 and that of the Head Teacher of 60 Tupkhana L.P. School, which finds recorded in the impugned order dated 08.04.2010, had ever been made available to the petitioner. As no enquiry was done or Inquiry Officer appointed, apparently there was no Enquiry Report preceding the issuance of impugned order of dismissal dated 08.04.2010. 5. As the whole case rests on the provisions of Rule 9 of the Rules of 1964, notice is had to Rule 9 which lays down the procedure for imposing penalties. Sub rule (1) begins with a caveat that no order imposing on a Government servant any of the penalties specified in Rule 7 shall be passed except after an enquiry held, as far as may be, in the manner provided under the Rule 9. Sub rule (1) begins with a caveat that no order imposing on a Government servant any of the penalties specified in Rule 7 shall be passed except after an enquiry held, as far as may be, in the manner provided under the Rule 9. Definite charges on the basis of allegations on which enquiry is proposed to be held are to be framed by the Disciplinary Authority. While doing so, the Disciplinary Authority is to furnish the list of documents and the witnesses by which the articles of charges are proposed to be sustained. Inspection of official records and for taking extracts thereof are to be permitted, unless the Disciplinary Authority for reasons to be recorded in writing, opines that such records are not relevant for the purpose. Inquiry Authority is to be appointed, who is to conduct the enquiry in terms of sub rule (6) of Rule 9 and upon conclusion of the enquiry, a report is to be prepared by recording the findings on each of the charges. 6. In the case in hand, the procedure prescribed under Rule 9 was given a total go by. Records do not reveal any semblance of compliance of the procedure under Rule 9. 7. Having regard to the above, it would now be useful to notice relevant decisions rendered by this Court as well as by the Apex Court on the exercise of power of judicial review under Article 226 and that of the binding nature of the procedure laid down under Rule 9. In the case of Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC 610 , the parameters of the powers of judicial review under Article 226 in matters of disciplinary proceedings have been clearly spelt out. In the case of Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC 610 , the parameters of the powers of judicial review under Article 226 in matters of disciplinary proceedings have been clearly spelt out. At paragraph 12 thereof, the Apex Court held that generally the Court is not to venture into re-appreciation of evidence and can only see whether : "(a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; and (i) the finding of fact is based on no evidence." 8. Having regard to the parameters above and materials available in the instant case, it is clear that no enquiry was held complying with the procedure under Rule 9, which itself amounts to not affording opportunity to the petitioner of being heard, thereby violating the principles of natural justice. The impugned order dated 08.04.2010, which lays its foundation on the letter of the Deputy Inspector of Schools, Silchar dated 12.05.2006 and that of the information received from the Head Teacher of 60 Tupkhana L.P. School, which apparently were not made available to the petitioner, clearly shows that the authority had allowed himself to be influenced by irrelevant consideration. The authority had erroneously admitted inadmissible evidence influencing the finding of guilt. As a matter of fact, punishment imposed upon the petitioner was based on no evidence. 9. In the case of Jalaluddin Laskar v. State of Assam and Ors., reported in 1995 (2) GLR 383, this Court held that Rule 9 of the Rules of 1964 is mandatory and non-compliance thereof will make an enquiry invalid in the eye of law. As a matter of fact, punishment imposed upon the petitioner was based on no evidence. 9. In the case of Jalaluddin Laskar v. State of Assam and Ors., reported in 1995 (2) GLR 383, this Court held that Rule 9 of the Rules of 1964 is mandatory and non-compliance thereof will make an enquiry invalid in the eye of law. In this respect, reference is also made to sub rule (1) of Rule 9 which clearly prescribes that no order as specified in Rule 7 of the Rules of 1964 can be passed against a Government servant except after an enquiry to be held in the manner provided under the said provision. 10. In the case of Paban Chandra Das v. Indian Oil Corporation Limited, reported in 2012 (5) GLT 264, this Court held that it is for the Disciplinary Authority to establish the charge against the delinquent and the burden do not shift to the petitioner to prove otherwise. In the instant case, a reading of the impugned order dated 08.04.2010, at first glance itself, shows that the authority while reaching the conclusion that the petitioner had submitted fraudulent appointment and transfer orders, it relied upon the aforesaid order of the Deputy Inspector of Schools, Silchar dated 12.05.2006 and the information obtained from the Head Teacher of 60 Tupkhana L.P. School. The same were not made available to the petitioner. The foundation being inadmissible and irrelevant, such finding cannot have any legal basis so as to act upon it to punish the petitioner. 11. For the reasons discussed above, the order dated 08.04.2010 imposing penalty of dismissal from service upon the petitioner cannot stand the scrutiny of law and is liable to be set aside, which is accordingly done. It is made clear that if the respondent authority intends to initiate fresh disciplinary proceedings, the same shall be initiated only by issuing fresh charge sheet and that too within a period of 4(four) months from today. This view is taken in terms of the case in Chairman-cum-Managing Director, Coal India Limited v. Ananta Saha, reported in (2011) 5 SCC 142 . As regards back wages, no order for payment thereof is made. This view is taken in terms of the case in Chairman-cum-Managing Director, Coal India Limited v. Ananta Saha, reported in (2011) 5 SCC 142 . As regards back wages, no order for payment thereof is made. It is made clear that in the event fresh disciplinary proceedings is initiated, the petitioner shall co-operate in the enquiry and failing to do so will allow the Inquiry Officer to proceed ex parte by passing such order recording the reasons. 12. In view of the above, this writ petition stands allowed and the petitioner be restored to service.