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2016 DIGILAW 242 (GAU)

Nemai CH. Das v. State of Assam

2016-03-31

UJJAL BHUYAN

body2016
JUDGMENT AND ORDER Ujjal Bhuyan, J. (Oral) - Heard Mr. S. Bora, learned counsel for the petitioner, Mr. B.J. Talukdar, learned Govt. Advocate, Assam, Ms. A. Verma, learned Standing Counsel, Finance Department and Mr. A. Chetri, learned Standing Counsel appearing for the Pension and Public Grievances Department, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 22.12.2015 passed by the Commissioner and Secretary to the Govt. of Assam, Finance (Establishment-B) Department placing the petitioner under suspension. 3. Case of the petitioner is that he had entered into service under the Govt. of Assam in the year 1979 as Junior Accounts' Officer. Thereafter on being recommended by the Assam Public Service Commission (APSC), petitioner joined the Assam Financial Service. In the course of his long service career spanning about 36 years, petitioner had risen through the ranks and ultimately was appointed as Director of Pensions, Assam. 4. Office of the petitioner i.e., Directorate of Pension is situated in the 6th floor of a building called Housefed Complex. Most of the visitors to the office of the petitioner are pensioners above 60 years of age. 5. On 04.12.2015 some journalists had visited the office of the petitioner and had interviewed many people. When the petitioner was approached he did not give any interview but only said that there were two lifts to the office, out of which one always remained non-functional which caused inconvenience to the visitors who are mostly elderly pensioners. According to the petitioner, he had only expressed the view that if the Hon'ble Chief Minister would have known about the condition of the lifts those would have been restored immediately. 6. It appears that the journalists had aired a news item in some TV channels regarding functioning of the Directorate of Pension and also published it as a news item in the daily newspaper "Niyomia Barta" in its issue dated 05.12.2015. 7. Thereafter the impugned order dated 22.12.2015 was issued placing the petitioner under suspension. It stated that it appeared from the print media and news dated 05.12.2015 that petitioner had made some derogatory remarks against the Hon'ble Chief Minister, thus violating the rules of the Government. 8. Aggrieved, present writ petition has been filed. 9. Mr. Bora, learned counsel for the petitioner submits that there was no justification at all for placing the petitioner under suspension. 8. Aggrieved, present writ petition has been filed. 9. Mr. Bora, learned counsel for the petitioner submits that there was no justification at all for placing the petitioner under suspension. Petitioner had not made any derogatory remarks against the Hon'ble Chief Minister. He had not acted in any irresponsible manner or in any manner in violation of the conduct rules. Respondents did not make any endeavour to verify as to whether petitioner had really uttered any derogatory remarks against the Hon'ble Chief Minister. In such circumstances, suspension of the petitioner is not justified. Further submission is that petitioner is retiring on attaining the age of superannuation today i.e. 31.03.2016. At the fag end of his service career, suspending him clearly amounts to a punitive action on the part of the respondents. 10. On 04.01.2016, this Court had issued notice and had directed learned State Counsel to produce the relevant file before the Court leading to issuance of the impugned order. Though time was sought for and granted, respondents had neither filed affidavit nor produced the record. Ultimately on 29.03.2016, this Court directed learned Standing Counsel, Finance Department to produce the relevant file today with the observation that in case the file was not produced, Court may proceed with the case on the basis of available materials. 11. Today, when the matter is called upon, Ms. A. Verma, learned Standing Counsel, Finance Department has produced the relevant file. However, no affidavit has been filed. 12. On a perusal of the file, it is seen that as per verbal order of the Commissioner and Secretary, Pension and Public Grievances Department, copy of the news item published in the newspaper "Niyomia Barta" on 05.12.2015 was put up before the Commissioner and Secretary for perusal. The note dated 05.12.2015 says that the newspaper report was all about the Directorate of Pension and its functioning and was "indicative of improper reporting". Thereafter, a note was put up by the Commissioner and Secretary, Pension and Public Grievances Department to the departmental Minister on the same day. As per the note, it was stated in the news report that "CM is also old, CM can make the lift ok in a second". Referring to Government Office Memorandum (OM) dated 24.06.2005, the note says that petitioner being a Government servant and Head of the Department ought not to have made such comments which calls for disciplinary action. As per the note, it was stated in the news report that "CM is also old, CM can make the lift ok in a second". Referring to Government Office Memorandum (OM) dated 24.06.2005, the note says that petitioner being a Government servant and Head of the Department ought not to have made such comments which calls for disciplinary action. Observing that petitioner had violated existing Government instructions, proposal was made to place the petitioner under suspension pending drawal of departmental proceeding. However, it was observed that petitioner being an officer belonging to the Assam Financial Service (AFS), it was the Finance Department which is the cadre controlling authority. It was therefore suggested that Finance Department be requested to take action accordingly. It was also suggested that Sri Aicheng Gohain, AFS, Joint Director of Pension may be allowed to hold the charge of Director of Pension till the posting of a regular Director. 13. On the same day, the departmental Minister forwarded the proposal to the Hon'ble Chief Minister for approval which was approved on 09.12.2015. 14. During pendency of the writ petition, a show-cause notice was issued to the petitioner on 14.01.2016 under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 read with Article 311 of the Constitution alleging that petitioner had made some derogatory remarks against the Hon'ble Chief Minister in the print and electronic media, thus violating the Govt. OM dated 26.04.2005 and relevant provisions of the Assam Civil Services (Conduct) Rules, 1965 as a Government servant. This has been brought on record by the petitioner by filing an additional affidavit. 15. Submissions made have been considered. Also perused the record as noticed above. 16. Before proceeding further, it is considered appropriate to briefly refer to the news report which appeared in the newspaper "Niyomia Barta" on 05.12.2015. The said news report has been read over in the Court in the course of hearing. 15. Submissions made have been considered. Also perused the record as noticed above. 16. Before proceeding further, it is considered appropriate to briefly refer to the news report which appeared in the newspaper "Niyomia Barta" on 05.12.2015. The said news report has been read over in the Court in the course of hearing. On a reading of the news report, it prima facie appears that the news item is basically a report of the journalist concerned though in the course of the report, certain comments have been attributed to the petitioner, like the one relating to difficulties faced by the old pensioners while visiting the office because of non-functioning of one of the lifts and that had this aspect been brought to the notice of the Hon'ble Chief Minister, the lift would have been made functional immediately. 17. Assam Civil Services (Conduct) Rules 1965 deals with matters relating to conduct of Government servants. Rule 7 provides that no Government servant shall in any radio broadcast or in any document published in his own name or anonymously or pseudonymously or in the name of any other person or in any communication to the press or any public utterance, criticize the functioning of the Government or policy of the Government. Rule 16 on the other hand provides that no Government servant shall except with the previous sanction of the Government or the prescribed authority or in the bona fide discharge of his duties, participate in a radio broadcast or contribute any article or write any letter either in his own name or anonymously, pseudonymously or in the name of any other person to any newspaper or periodical. However, if such broadcast or such contribution is of purely literary, artistic or scientific character, then no sanction of the Government would be required. 18. OM dated 24.06.2005 clarifies Rule 16 of the Assam Civil Services (Conduct) Rules, 1965. While reiterating the aforesaid provision, it has been clarified that Rule 16 would also be attracted in the event of giving interviews by Government servants before the electronic media as a whole without prior approval/clearance of the Government. 19. Having noticed the legal provisions as above, impugned suspension order may now be adverted to. While reiterating the aforesaid provision, it has been clarified that Rule 16 would also be attracted in the event of giving interviews by Government servants before the electronic media as a whole without prior approval/clearance of the Government. 19. Having noticed the legal provisions as above, impugned suspension order may now be adverted to. For ready reference, the same is extracted hereunder:- "No.FEB 321/2015/1:From the records available in the Pension & Public Grievances Department in the File No. PPG(P) 118/2014 and the detailed report therein, Sri Nemai Ch. Das, AFS, Director of Pension, Assam being a Government servant has violated the rules in the Assam Civil Services (Conduct) Rules, 1965 and the existing Govt. instruction issued vide Govt. OM No. ABP 25/97/149 Dated 24/06/2005 and therefore calls for disciplinary action. As appears from the print media and news dated 05/12/2015, Sri Nemai Ch. Das, AFS made some derogatory remarks against the Hon'ble CM by violating the rules in Govt. OM No. ABP 25/97/149 Dated 24/06/2005. Now, therefore, the Governor of Assam having been satisfied with the above facts and circumstances and pending drawal of Departmental Proceedings and in exercise of the power conferred under Rule 6(I) of the Assam Services (Discipline and Appeal) Rules, 1964, Sri Nemai Ch. Das, AFS, Director of Pension, Assam is hereby placed under suspension with immediate effect. It is not permissible for him, henceforth, without previous sanction of the undersigned to accept private employment or to do business while under suspension in view of the provision of Rule 12 of Assam Civil Services (Conduct) Rules, 1965. If while under suspension, he accepts private employment in violation of Rule 12 of Assam Civil Services (Conduct) Rules, 1965, he will be guilty of misconduct and will be liable to be dealt with accordingly. He is also liable in that case to forfeit his claim for subsistence allowance. The Headquarter of Sri Nemai Ch. Das, AFS, Director of Pension, Assam, will be at Dispur. He will not leave Headquarter without prior permission of the undersigned." Thus, the allegation is that petitioner had made some derogatory remarks against the Hon'ble Chief Minister which violated the conduct rules and therefore pending drawal of departmental proceeding, petitioner was placed under suspension. In the show-cause notice dated 14.01.2016, it is also stated that petitioner had made some derogatory remarks against the Hon'ble Chief Minister. 20. In the show-cause notice dated 14.01.2016, it is also stated that petitioner had made some derogatory remarks against the Hon'ble Chief Minister. 20. From a conjoint reading of the impugned order dated 22.12.2015 as well as the show-cause notice dated 14.01.2016, it is seen that respondents are not sure as to what derogatory remarks were made by the petitioner against the Hon'ble Chief Minister. All that is said is that "some derogatory remarks" were made by the petitioner against the Hon'ble Chief Minister and in this connection a copy of the newspaper report dated 05.12.2015 of "Niyomia Barta" was annexed to the show-cause notice which is also available in the record. 21. The record does not disclose that any discreet administrative enquiry was made by the respondents to find out as to what derogatory remarks were made by the petitioner and whether he had actually made any such derogatory remarks or whether he had given any interview to the journalists. As already noticed above, it was on the basis of verbal order of the Commissioner and Secretary, Pension and Public Grievances Department that the process for suspending the petitioner was initiated. 22. Court is of the view that though at the first blush the challenge made in the writ petition appears to be limited, on a deeper analysis, several issues of considerable importance arises for consideration. Firstly, from the record itself it appears that the petitioner belongs to the Assam Financial Service. The parent department of the petitioner is the Finance Department. The Finance Department is the cadre controlling authority of the petitioner. By virtue of being the Director of Pension, petitioner was under the administrative control of Pension and Public Grievances Department. The note of the Commissioner and Secretary, Pension and Public Grievances Department dated 05.12.2015 acknowledges this aspect of the matter and says that Finance Department should be requested to take action accordingly. Instead of forwarding the matter to the Finance Department, the departmental Minister forwarded three proposals, A, B & C to the Hon'ble Chief Minister for approval;-A-related to suspension of petitioner pending drawal of departmental proceeding; B-related to requesting the Finance Department to take action accordingly and C relating to allowing the Joint Director of Pension to hold the charge of Director of Pension. It appears that all the three proposals were approved by the Hon'ble Chief Minister on 09.12.2015. It appears that all the three proposals were approved by the Hon'ble Chief Minister on 09.12.2015. From the above, it is quite discernible that the procedure adopted by the Pension and Public Grievances Department was not proper. Instead of allowing the parent department i.e., the Finance Department to consider the matter, the Pension and Public Grievances Department took it upon itself and decided to place the petitioner under suspension. Before the matter could be processed by the Finance Department, proposal of the Pension and Public Grievances Department to place the petitioner under suspension was approved by the Hon'ble Chief Minister. Therefore, issuance of the impugned suspension order by the Finance Department became a mere formality without any application of mind. 23. There is another aspect of the matter. When the allegation against the petitioner was of making some derogatory remarks against the Hon'ble Chief Minister, whether it was proper and justified to have referred the matter to the Hon'ble Chief Minister to decide whether petitioner should be placed under suspension or not. Fairness in action, which is an intrinsic part of the principles of natural justice, is equally applicable to administrative decisions which affects the rights of the party; it is a cardinal principle of natural justice that one cannot be a judge in his own case. This aspect was clearly overlooked by the authorities who ought to have pointed it out to the Hon'ble Chief Minister. Exercise of such administrative decision ought to have been left to some other authority instead of involving the Hon'ble Chief Minister. 24. Petitioner has honestly admitted in the writ petition that when he was asked by the journalists about the office establishment, he had only pointed out two things. Firstly, the difficulties faced by the elderly pensioners while visiting the office as it is situated in the 6th floor of the building with one of the two lifts remaining non-functional; and consequently that had this fact been brought to the notice of the Hon'ble Chief Minister he would have got the lift made functional immediately. Perhaps, such "interaction" by the petitioner with the journalists, if it can be said to be so, may not amount to giving of interview so as to attract the vice of the Government OM dated 24.06.2005. 25. Perhaps, such "interaction" by the petitioner with the journalists, if it can be said to be so, may not amount to giving of interview so as to attract the vice of the Government OM dated 24.06.2005. 25. If the above statements are considered in a dispassionate manner perhaps it cannot be said that it was an adverse criticism of the State Government or that of the Hon'ble Chief Minister, not to speak of making derogatory remarks against the Hon'ble Chief Minister. Therefore, to hold that petitioner had made some derogatory remarks against the Hon'ble Chief Minister does not appear to be justified. Even if it is held that petitioner had committed an indiscretion by talking to the journalists thereby attracting the Government OM dated 24.06.2005, the response of the authority appears to be highly excessive and disproportionate. Availability of power to suspend a Government servant is one thing, exercise of such power is altogether another thing. In the facts and circumstances of the present case, exercise of such power appears to be unreasonable and arbitrary. It appears to be a case of being more loyal than the king himself. 26. The record also does not disclose that after placing the petitioner under suspension on 22.12.2015 any review of the suspension has been made as to whether the suspension should be continued or revoked. Rule 6 (5) of the Assam Services (Discipline & Appeal) Rules, 1964 provides that the authority which placed the Government servant under suspension has the power and jurisdiction to revoke the order of suspension, if so warranted. The Hon'ble Supreme Court in Ajay Kumar Choudhury v. Union of India reported in (2015) 7 SCC 291 has held that an order of suspension should not be continued beyond 3 months if in the meanwhile no show-cause notice is issued. In a case where show-cause notice is issued, the authorities are required to consider as to whether continuation of suspension beyond 3 months would be justified or not and if it is considered to be justified, to pass a reasoned order extending the suspension beyond 3 months. The record does not disclose carrying out of any such exercise by the respondents. 27. That being the position, Court is of the considered opinion that impugned suspension of the petitioner dated 22.12.2015 is not justified and cannot be sustained. It is accordingly set aside and quashed. 28. Record produced by Ms. The record does not disclose carrying out of any such exercise by the respondents. 27. That being the position, Court is of the considered opinion that impugned suspension of the petitioner dated 22.12.2015 is not justified and cannot be sustained. It is accordingly set aside and quashed. 28. Record produced by Ms. A. Verma, learned Standing Counsel, Finance Department is returned back. 29. Writ petition is allowed.