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2016 DIGILAW 833 (GAU)

Shamsuddin Borbhuiyan v. State of Assam

2016-09-02

UJJAL BHUYAN

body2016
JUDGMENT : Ujjal Bhuyan, J. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 29.09.2012 passed by the Director of Elementary Education, Assam, imposing the penalty of withholding of 5 annual increments with cumulative effect on the petitioner. 2. Petitioner is serving as Assistant Teacher in Bakrihowar MV School in the district of Hailakandi. By order dated 02.05.2011 passed by the Director of Elementary Education, Assam, he was placed under suspension. It was stated that following a preliminary enquiry, it came to light that petitioner was involved in illegal drawal of money as incremental benefit of 140 numbers of Assistant Teachers belonging to Middle Schools of Hailakandi district. 3. Thereafter, show-cause notice dated 14.02.2012 was issued by the Director under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (1964 Rules) read with Article 311 of the Constitution of India as to why any of the penalties prescribed in Rule 7 of the 1964 Rules should not be imposed on him on the following two charges: "1. That while you were serving as Asstt. Teacher at Bakrihawar MV School, you were involved in illegal drawal of incremental benefit of 140 Nos. teachers of Middle Schools under Hailakandi district. In this regard, an enquiry was conducted to enquire into the matter by the Govt. for drawal of illegal incremental benefit of teachers and the Enquiry Officer submitted the enquiry report wherein reveals that you had handover the copy of forged order No.EE(Plan)-80/2006/Pt-I/105 dated 29.03.2008 signed by the then District Elementary Education Officer, Hailakandi which was for allowing incremental benefit and crossing of EB and requested the District Elementary Education Officer to issue order for allowing incremental benefit on the forged order to the 140 No. teachers and accordingly the District Elementary Education Officer, Hailakandi had issued an order on 29.03.2008 and as a result of which huge amount has been lost from the Govt. exchequer for your personal interest. You are therefore charged with misappropriation of Govt. money, misleading the authority, mala fide intention violation of Govt. procedure and rule for your personal gain. 2. That while you were serving as Asstt. Teacher at Bakrihawar MV School, you were involved in illegal act which has been reflected in the enquiry report submitted by the Govt. You are therefore charged with misappropriation of Govt. money, misleading the authority, mala fide intention violation of Govt. procedure and rule for your personal gain. 2. That while you were serving as Asstt. Teacher at Bakrihawar MV School, you were involved in illegal act which has been reflected in the enquiry report submitted by the Govt. on 29.04.2011 wherein reveals that you had entered into the office chamber of the District Elementary Education Officer, Hailakandi unauthorisedly on 28.05.2010 and pressurised him to cancel the order issued on 20.05.2010 regarding recovery of drawn amount of incremental benefit and crossing of EB of 140 Nos. of teachers and when he expressed his inability to cancel the order then you had threatened him with dire consequences and for the same purpose you had again threatened him in his office chamber on 02.07.2010 which is great offence being a Govt. servant which you wilfully done such illegal activities for your personal gain. You are, therefore, charged with involvement of illegal unauthorized activities such as criminal manner, mala fide intention, misappropriation of Govt. money which is unbecoming being a Govt. servant." 4. The show-cause notice was accompanied by a statement of allegation. It is stated that no list of witnesses and no list of documents were annexed to the said show-cause notice. 5. Petitioner submitted his reply on 23.03.2012 denying the charges framed against him. He requested the Director to exonerate him from the charges and to reinstate him in service. 6. It appears that reply of the petitioner was not accepted and enquiry was conducted against the petitioner by appointing Enquiry Officer and Presenting Officer. According to the petitioner, in the enquiry, evidence of certain witnesses were recorded but petitioner was not allowed to cross-examine them. What was the outcome of the enquiry was also not made known to the petitioner as copy of the enquiry report was not furnished to him. 7. Ultimately, Director of Elementary Education, Hailakandi, passed the impugned order dated 29.09.2012 reinstating the petitioner in service in his original place of posting but imposing the penalty of withholding of 5 annual increments with cumulative effect. 8. Though petitioner had filed an appeal before the Commissioner and Secretary to the Govt. of Assam, Education (Elementary) Department on 13.12.2012, no decision was forthcoming. 9. Hence, the writ petition. 10. Heard Mr. I. Choudhury, learned counsel assisted by Mr. 8. Though petitioner had filed an appeal before the Commissioner and Secretary to the Govt. of Assam, Education (Elementary) Department on 13.12.2012, no decision was forthcoming. 9. Hence, the writ petition. 10. Heard Mr. I. Choudhury, learned counsel assisted by Mr. A.K. Baruah, learned counsel for the petitioner and Mr. N. Sharma, learned Standing Counsel, Elementary Education Department, Government of Assam. 11. This Court by order dated 17.09.2013, had issued notice and observed that impugned penalty would be subject to outcome of the writ petition. 12. Though this case is pending since the year 2013, no affidavit has been filed by the respondents till date. 13. When the case was called upon for admission-hearing on 02.08.2016, the following order was passed: "Challenge made in this writ petition is to the legality and validity of the order dated 29.09.2012 passed by the Director of Elementary Education, Assam imposing the penalty of withholding five annual increments with cumulative effect on the petitioner. Petitioner is Assistant Teacher of Bokrihawar MV School in the district of Hailakandi and the said penalty was imposed following a departmental proceeding. Challenge to the impugned penalty has been made primarily on the following grounds:- 1. Show-cause notice was not accompanied by list of documents and list of witnesses. 2. Petitioner's request for perusal of additional documents was not responded to. 3. During the enquiry, petitioner was not allowed to cross-examine the witnesses adduced on behalf of the disciplinary authority. 4. On conclusion of the enquiry, copy of the enquiry report was not furnished to the petitioner. 5. The charge of illegal drawal of incremental benefit of 140 numbers of teachers of Middle Schools of Hailakandi district itself is untenable having been disapproved by this Court in WP(C) No. 3238/2010. To appreciate the contention of learned counsel for the petitioner regarding violation of the principles of natural justice and non-conformity to the laid down procedure, Court is of the view that perusal of the record relating to the disciplinary proceeding drawn up against the petitioner would be necessary. In so far outcome of the appeal filed by the petitioner is concerned, Court is of the view that when this Court is in seisn of the matter it may not be possible for the appellate authority to decide the appeal on merit. On the next date, Mr. In so far outcome of the appeal filed by the petitioner is concerned, Court is of the view that when this Court is in seisn of the matter it may not be possible for the appellate authority to decide the appeal on merit. On the next date, Mr. N. Sarma, learned Standing Counsel shall produce the record of the disciplinary authority for consideration of the Court." 14. Thereafter, learned Standing Counsel produced the record. 15. The grounds of challenge to the impugned order have already been noticed in the order dated 02.08.2016. 16. Before proceeding further, it would be apposite to note that the challenge is made broadly on two counts, firstly, on procedure and secondly, on substance. 17. At the first instance, challenge to the impugned order on the ground of non-compliance to the procedural requirement may be considered. 18. As can be seen from the show-cause notice that it was issued under Rule 9 of the 1964 Rules read with Article 311 of the Constitution of India. 19. Rule 9 of the 1964 Rules lays down the procedure for imposing penalties on a Government servant. Rule 9(1) provides that no order imposing on a Government servant any of the penalties specified in Rule 7 should be passed except after an enquiry held as far as may be in the manner provided in Rule 9. Therefore, holding of enquiry preceding imposition of penalty is a sine qua non for such imposition of penalty. 'Enquiry' would mean an 'enquiry' which is so understood in law. In other words, an 'enquiry' must contain a fair procedure where principles of natural justice are followed; such an 'enquiry' being a quasi-judicial proceeding, principles of natural justice and fairness are inbuilt. 20. As per Sub-Rule (2), disciplinary authority is required to frame definite charges against the delinquent Government servant on the basis of the allegations and such charges have to be accompanied by a statement of allegation to be served on the delinquent Government servant. As per the second part of Sub-Rule (2), at the time of delivering the charges, the disciplinary authority shall invariably furnish to the Government servant a list of documents and a list of witnesses by which each article of charge is proposed to be sustained. The language employed in the second part of Sub-Rule (2), namely, use of the expression 'shall' confers a mandatory character to the said provision. The language employed in the second part of Sub-Rule (2), namely, use of the expression 'shall' confers a mandatory character to the said provision. In other words, show-cause notice containing the charges must be accompanied by a statement of allegation, a list of documents and a list of witnesses by which the articles of charges are proposed to be sustained and those have to be served upon the delinquent Government servant. Sub-Rule (3) permits the Government servant to inspect and take extracts from relevant documents for the purpose of preparing his defence. 21. As per Sub-Rule (6), in the course of enquiry, enquiring authority shall consider documentary as well as oral evidence which may be relevant or material in regard to the charges. The delinquent Government servant shall be entitled to cross-examine the witnesses examined in support of the charges and to give evidence in person. He is also entitled to adduce documentary and oral evidence in his defence. Presenting Officer would be entitled to cross-examine the delinquent Government servant and the witnesses examined in his defence. 22. Sub-Rule (7) provides that at the conclusion of the enquiry, the Enquiry Officer shall prepare a report of the enquiry, record his findings on each of the charges together with reasons therefor. 23. Following the judgment of the Supreme Court in Managing Director, ECIL v. B. Karunakar, reported in (1993) 4 SCC 727 , the 1964 Rules have been amended, though belatedly, by insertion of Sub-Rule (9) (ii) and (iii) providing for furnishing of a copy of the enquiry report to the delinquent Government servant thereby giving him an opportunity to submit representation on such report. Thereafter, disciplinary authority on consideration of the record of enquiry and the response of the delinquent Government servant shall pass appropriate order in accordance with law. 24. This Court has held in several judgments that the procedure prescribed under Rule 9 of the 1964 Rules has mandatory character and non-compliance thereof would vitiate the decision-making process culminating in the penalty imposed. It is not necessary to restate the law on this point as the same is well-settled. 25. To appreciate the challenge made to the impugned order of penalty on the ground of violation of the prescribed procedure, it would be relevant to refer to the impugned order which is extracted hereunder:- "Sri Samsuddin Barbhuiya, Asstt. It is not necessary to restate the law on this point as the same is well-settled. 25. To appreciate the challenge made to the impugned order of penalty on the ground of violation of the prescribed procedure, it would be relevant to refer to the impugned order which is extracted hereunder:- "Sri Samsuddin Barbhuiya, Asstt. Teacher of Bokrihawar MV School who was placed under suspension vide this office order under Memo No.ECA-12/2011/24 dated 02.05.2011 is hereby re-instated in service and posted in the original place of posting i.e. Bokrihawar MV School with immediate effect with the following penalties: 1. Withholding 5 (five) annual increment with cumulative effect." 26. A bare perusal of the impugned order would go to show that the same has not been passed in accordance with the procedure prescribed under Rule 9. The record produced by the learned Standing Counsel has also been perused and on perusal of the record, it is discernible that along with the show-cause notice, no list of documents and no list of witnesses were annexed and served upon the petitioner. On the other hand, from a perusal of the enquiry report submitted by the Enquiry Officer on 20.07.2012 which is available in the record, it is evident that following three documents were considered by the Enquiry Officer: (1) Enquiry report dated 30.12.2010 of Shri S.K. Bhuyan, Joint Secretary, Education Department, (2) Enquiry report dated 24.06.2010 of Ms. K.K. Singha, Joint Director of Elementary Education, and (3) Show-cause notice and statement of allegation served upon the petitioner. 27. It is seen that on going through the aforesaid materials, Enquiry Officer found the petitioner to be guilty of the charges framed. As already mentioned, the show-cause notice was not accompanied by any list of documents. Other than the show-cause notice and statement of allegation served upon the petitioner, the other two documents which were relied upon by the Enquiry Officer were neither mentioned in the show-cause notice nor copies of the same furnished to the petitioner. It is an elementary principle that even in case of a departmental proceeding, if the authority wants to rely upon any document to prove the charge framed against the delinquent Government servant, the delinquent Government servant has to be put on notice of such document. He cannot be taken by surprise. It is an elementary principle that even in case of a departmental proceeding, if the authority wants to rely upon any document to prove the charge framed against the delinquent Government servant, the delinquent Government servant has to be put on notice of such document. He cannot be taken by surprise. Use of materials in a departmental proceeding without notice to the delinquent Government servant would amount to violation of the principles of natural justice. 28. While still at the enquiry report, it is seen that the enquiry report is jointly signed by the Enquiry Officer as well as by the Presenting Officer which itself is unacceptable. Enquiry was conducted by the Enquiry Officer and the mandate of the Presenting Officer was to present the case of the disciplinary authority. Presenting Officer cannot be a party to the enquiry report. Interestingly, Enquiry Officer and the Presenting Officer jointly not only found the petitioner to be guilty but also recommended that he should be punished by withholding two increments for prospective years and holding up all future promotional avenues. Thus, the enquiry report suffers from a fundamental flaw. Enquiry Officer certainly exceeded his brief when he recommended penalty that was to be imposed on the petitioner. 29. Neither the record nor the impugned order discloses that copy of the enquiry report was furnished to the petitioner. On the other hand, petitioner has categorically stated that copy of the enquiry report was not furnished to him and therefore he was unaware of the contents of the enquiry report. Furnishing of a copy of enquiry report to the delinquent Government servant before holding him guilty is not a mere formality. As has been explained by the Supreme Court in Managing Director, ECIL (supra), report of the Enquiry Officer is an opinion to be taken into consideration by the disciplinary authority. 30. By applying the principles of natural justice, since enquiry report is to be considered by the disciplinary authority, a delinquent Government servant would have a right to respond to the contents of the enquiry report. It is only after consideration of the enquiry report and the response of the delinquent Government servant would the disciplinary authority come to a finding regarding guilt or otherwise of the delinquent Government servant. It is only after consideration of the enquiry report and the response of the delinquent Government servant would the disciplinary authority come to a finding regarding guilt or otherwise of the delinquent Government servant. of course, after such finding is reached, it would no longer be necessary to issue further notice to the delinquent Government servant before imposition of penalty in view of amendment brought into Article 311 (2) of the Constitution. 31. Lastly, a cursory glance at the impugned order would go to show complete non-adherence to the procedure prescribed under Rule 9 of the 1964 Rules inasmuch as it is a non-speaking order and does not disclose why the said penalty was imposed on the petitioner. While Sub-Rule (9) requires the disciplinary authority to record its finding on each charge. Not to speak of recording such finding, the impugned order does not even hold the petitioner to be guilty of the charges framed against him. It also does not disclose consideration of record of enquiry, not to speak of response of the petitioner. If there is no finding of guilt recorded by the disciplinary authority, question of imposition of any penalty does not arise. 32. Though there is the ancillary issue as to why one particular penalty was imposed when Rule 7 provides for several penalties which requires application of mind to justify imposition of the said penalty, having noticed the multiple but fundamental flaws afflicting the impugned order of penalty, it may not be necessary to delve into this additional aspect of the matter. 33. On the substance of the charges framed against the petitioner, namely, illegal drawal of incremental benefit by 140 numbers of Assistant Teachers with the allegation that petitioner had played a role in such drawal of money, it is seen from the materials on record that the same was put to challenge by the beneficiaries before this Court in WP(C) No.3238/2010 which was allowed by this Court by a detailed judgment and order dated 27.01.2011. By the said order, this Court held that beneficiaries were entitled to the incremental benefit and the order cancelling such incremental benefit was quashed. Allegation of fraud in the grant of such benefit was not upheld. 34. Therefore, on a totality of the facts and circumstances of the case as discussed above, impugned order of penalty dated 29.09.2012 cannot be sustained and is accordingly set aside and quashed. Allegation of fraud in the grant of such benefit was not upheld. 34. Therefore, on a totality of the facts and circumstances of the case as discussed above, impugned order of penalty dated 29.09.2012 cannot be sustained and is accordingly set aside and quashed. 35. Writ petition is allowed to the extent indicated above. 36. Record produced by Mr. Sharma is returned back.