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2016 DIGILAW 237 (GAU)

State of Assam v. Anil Kumar Barua

2016-03-30

AJIT SINGH, MANOJIT BHUYAN

body2016
JUDGMENT : AJIT SINGH, J. 1. Heard on admission. In this intra-court appeal the State has questioned the validity of order dated 31.10.2013 passed by the learned Single Judge of this High Court in W.P. (C) No. 172/2008 to the extent he has held that penalty of reduction in rank imposed on respondent is shockingly disproportionate. 2. During the relevant period, respondent was working on the post of Junior Administrative Assistant with the appellant. 3. By show cause notice dated 22.7.2003, disciplinary proceedings were initiated against the respondent charging him with entering into conspiracy, defrauding and misleading the Government by incorporating misleading notes, pasting the original one in the file and incorporating the name of firm Motorola Limited with vested interest in contravention of Rule 3(i)(ii) and (iii) of the Assam Civil Service (Conduct) Rules, 1963. 4. The Respondent in his reply denied all the charges levelled against him and clarified that from 19.12.2001 to 3.1.2002 he was on earned leave, but on a telephonic request of Mr. Gagan Patar, the then Under Secretary to the Govt. of Assam, Home (A) Department, he had to visit the latter’s chamber on 27.12.2001 at about 11.30 a.m. And there he had to prepare a draft sanctioning letter with a note on the note sheet as per the direction and dictation of Mr. Gagan Patar, but without putting his signature anywhere as he was on leave on that day. 5. Since the reply of respondent was not found to be satisfactory, he was subjected to disciplinary proceedings. 6. After completing enquiry, the Enquiry Officer in his report has mentioned that witnesses Ramani Das, Shri Prabin C. Das, Shri Abinash Hazarika and Sadananda Bordoloi have testified against the respondent. The Enquiry Officer has also given a specific finding that the act of inclusion of the name of Motorola Limited in the sanction order was done as per conspiracy made by respondent, Abinash Hazarika, Gagan Chandra Patar and Chittaranjan Ojha with a vested interest. According to the Enquiry Officer respondent prepared the draft sanction letter and pasted the earlier one in the note sheet under direction of Mr. Gagan Patar when the former was on earned leave. 7. The Commissioner and Secretary to the Government of Assam, relying upon the enquiry report vide order dated 2.8.2007 imposed the penalty of reduction of rank on respondent demoting him to the level of Junior Administrative Assistant. Gagan Patar when the former was on earned leave. 7. The Commissioner and Secretary to the Government of Assam, relying upon the enquiry report vide order dated 2.8.2007 imposed the penalty of reduction of rank on respondent demoting him to the level of Junior Administrative Assistant. Aggrieved, the respondent challenged the order dated 2.8.2007 passed in W.P. (C) No. 4095/2007 inter alia on the ground that non furnishing of enquiry report had caused serious prejudice to him. This Court agreed with the respondent and vide order dated 17.8.2007 quashed the order dated 2.8.2007 with a direction to the appellant to furnish enquiry report to him. A copy of enquiry report was therefore supplied to the respondent against which he made a representation. But the Commissioner and Secretary to the Government of Assam vide order dated 3.1.2008 again imposed the same penalty of reduction in rank on the respondent. Aggrieved, the respondent had to file W.P. (C) No. 182/2008 wherein he prayed for quashing of the order dated 3.1.2008. 8. The learned Single Judge by the impugned order has agreed with the disciplinary authority that the charge against respondent was found to be proved. The learned Single has however held that penalty of reduction in rank imposed on him was shockingly disproportionate. He has therefore directed the appellant to reconsider the penalty of reduction in rank and modify the penalty to one which is lesser than the reduction in rank. It is in this background the appellant has filed the present appeal. 9. The relevant paragraph 10 of the impugned order passed by the learned Single Judge wherein he has held that penalty imposed on the respondent is shockingly disproportionate and excessive reads as under: “10. The admissions made by the petitioner that it was he who, on the instruction of Shri GC Patar, Under Secretary, Home (A), prepared the draft sanction order and pasted the cut note over the original note sheet to include M/S Motorola India Ltd. in the sanction order, which was not there in the proposal of the Home Department or in the concurrence given by the Finance Department, are not disputed. Moreover, the fact that these exercises had been done by him when he was on earned leave is also an undisputed fact. Moreover, the fact that these exercises had been done by him when he was on earned leave is also an undisputed fact. Therefore, the Enquiry Officer, has correctly held that the petitioner is guilty of the charges leveled against him, which does not warrant my interference as they are based on evidence. However, no action has been taken against the remaining officials including the said GC Patar, against whom there are similar evidences. The fact that the petitioner was committing the misconduct in question on the instruction of the said Gagan Chandra Patar, who was the then Under Secretary, Home (A) Department and was his superior officer, cannot be lost sight of while considering the quantum of penalty to be imposed upon him. That apart, there is no evidence to show that any action has been taken against other delinquent officials who have been found to be equally responsible for the delinquency. Under the circumstances, I am of the view that the penalty imposed upon the petitioner is shocking and relatively excessive and disproportionate to the misconduct proved against him: a lesser penalty is called for. In my opinion, the petitioner has been subjected to hostile discrimination without any rhyme or reason. I am fortified in my view by the decision of the Apex Court in Chandra Vilash Rai vs. State of Punjab and Others, (2003) 11 SCC 741. This is what it said: “3. Having examined the nature of charges alleged and proved against the two delinquents, we cannot but observe that the charges are serious, more particularly, since they relate to the affairs of a cooperative bank. But at the same time, it cannot be disputed that these delinquents have rendered services in the society for more than 20 years. It also transpires that the so-called delinquency had not been committed on their own but at the behest of the Board of Directors, though in law such action would not exonerate the delinquents from the liabilities which they would incur for such illegalities and irregularities. In the aforesaid premises, we think it appropriate that ends of justice will be met if we alter the punishment of dismissal to one of premature retirement, as provided in the Staff Regulations of the Bank, which appear to have been framed by the Board in its resolution dated 12-3-1985, which punishment also is a major punishment and we accordingly so direct. If the delinquents are entitled to any retirement benefits on the basis of such premature retirement, those may be given to them. These appeals are disposed of accordingly.” 10. During the course of argument, learned counsel for the appellant could not explain why no action was taken against the remaining officials, namely, Abinash Hazarika, Gagan Ch. Patar and Chittaranjan Ojha despite there being similar evidence against them. Surprisingly, no action is also taken against Gagan Ch. Patar who was the then Under Secretary to the Government of Assam, Home (A) Department and was superior to the respondent and under whose instruction draft sanctioning letter with a note was prepared by the latter. Apparently, the respondent was single out and has been subjected to hostile discrimination. As seen above, the learned Single Judge has taken a serious note of this fact while holding that the penalty imposed on the respondent was shockingly disproportionate to the misconduct proved against him and that a lesser penalty was called for. 11. In the fact situation of the case, we find ourselves in complete agreement with the view taken by the learned Single Judge. The appeal has no merit and is accordingly dismissed.