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2017 DIGILAW 1325 (GAU)

Rupa Pachani Kalita v. State of Assam

2017-09-22

NELSON SAILO

body2017
JUDGMENT : 1. Heard Mr. R.C. Saikia, the learned counsel for the petitioner and Mr. M.R. Adhikari, the learned Government advocate, Assam, for all the respondents. 2. The case of the petitioner may briefly be summarized at the outset. 3. The petitioner was appointed to the post of Lower Division Assistant under the Directorate of Sericulture Department and she joined the post on 1.7.19 94. She was confirmed to the post vide order dated 17.2.2004 with effect from 1.7.2003 (Annexure 1). 4. While she was serving in such capacity, the petitioner was served with a show-cause notice dated 30.6.2005 (Annexure 2), whereby, the following charges were made against her: “(1) That while you were LDA in the Directorate of Sericulture, Assam, you did blackmail a Deputy Director of Sericulture, Assam, namely, Sri D.K. Saharia by forcibly kidnapping him by taking naked photographs jointly with him. (2) You joined hand with an advocate, namely, Sri Pranjit Talukdar and forced Sri Saharia to sign a blank stamp paper demanding Rs. 50,000. (3) You forced Sri Saharia to blackmail him sexually and took pornographic photograph with him. (4) Being a married women you have a legal husband alive and you engaged yourself in illegal sexual activity with an advocate, named, Sri Pranjit Talukdar as a sex partner. The matter came to light in the leading Newspaper (Asomia Protidin) dated. 1.7.2004. (5) You locked Sri D.K. Saharia in a room in the house of Sri Pranjit Talukdar and beat him with stick, rod and cricket bat, etc. You also abused Sri Saharia and took away his mobile phone and gold chain, etc., forcibly. All these event were published in the local dailies, namely, (a) Dainik Agradoot, dated 30.6.2004, (b) Dainik Janambhumi, dated 30.6.2004, (c) Amur Asom, dated 30.6.2004, (d) Asomiya Agradoot, dated 1.7.2004. (6) All the misdeeds done by you prove that you were engaged in illegal sexual activity with a view to earn easy money in unsocial and criminal ways which is unbecoming of a Government servant. You are, therefore, charged with “Moral Turpitude” which leads to a crime of inherent baseness or violence.” 5. In consequence thereof as can be seen the petitioner was charged with “Moral Turpitude” and she was, therefore, asked to submit her written statement within 10 days. You are, therefore, charged with “Moral Turpitude” which leads to a crime of inherent baseness or violence.” 5. In consequence thereof as can be seen the petitioner was charged with “Moral Turpitude” and she was, therefore, asked to submit her written statement within 10 days. It was also provided that in case she wanted to inspect the documents, she should submit in writing to the Director of Sericulture within 7 days from the date of receipt of the communication and in which case she will be permitted 7 days time thereafter to submit her statement of defence. Along with show cause notice, the statement of allegations, list of documents and list of witnesses were attached therein. The petitioner then submitted her application for inspection of the documents vide letter dated 5.7.2005 (Annexure 3). Upon inspecting the documents the petitioner on 14.7.2005 (Annexure 4) submitted her reply to the show-cause notice denying the allegations made in the show-cause notice and with a request for a sympathetic consideration and human approach considering the fact that was revealed and that she may be allowed to continue her service on regular basis. She also prayed that necessary steps may be taken to punish Mr. D.K. Saharia and Mr. Pranjit Talukdar for trying to malign her reputation and outrage her modesty. After the show-cause reply was submitted by the petitioner, the appointed Inquiry Officer who was the Additional Director of the Sericulture Department submitted his inquiry report to the Directorate of the Sericulture on 28.2.2006 (Annexure 5) by enclosing documents, newspaper reports, photographs which were considered during the inquiry proceedings. It may be noted that the petitioner has been referred to as having been placed under suspension in the said communication. Pursuant to the submission of the inquiry report, a second show cause notice was issued to the petitioner on 16.2.2007 (Annexure 6), whereby the Director of Sericulture Department enacted that based upon the inquiry report, a provisional conclusion has been taken for dismissing the petitioner from service and, therefore, she was asked to reply within a period of 15 days from the date of receipt of the notice by showing cause as to why she should not be removed from service. Along with the second show cause notice, the inquiry report of the Inquiry Officer was also enclosed. 6. Along with the second show cause notice, the inquiry report of the Inquiry Officer was also enclosed. 6. The petitioner upon receiving the second show cause notice submitted her reply before the Directorate of Sericulture which was received by the said authority on 1.3.2007 (Annexure 7). The petitioner in her reply stated that the Inquiry Officer gave undue importance to the statement of Mr. D.K. Saharia who filed the FIR on 28.6.2004, 10 days after the alleged incident which was said to have taken place on 18.6.2004. No explanation was given to the delay of filling the FIR and without verifying the version of the petitioner. The Inquiry Officer accepted the version of Mr. D.K. Saharia, who lodged a concocted story in the FIR. She further stated that as many as 5 prosecution's witnesses including Mr. D.K. Saharia was examined as these witnesses are the employees of the Sericulture Department and, therefore, in the absence of any independent witness to prove and corroborate the evidence given by the witnesses, the same cannot be acted upon for imposition of major penalty like dismissal from her service. The petitioner besides also stated that she was neither allowed to cross-examine the prosecution witnesses nor was given a defence assistance to present her case. In such circumstances, the reliance placed by the Inquiry Officer upon the evidence of the witnesses as well as the newspapers report cannot be the ground to implicate her and conclude that the charge has been proved. The petitioner also stated that since the criminal proceeding was pending before the Court of the Judicial Magist rate, Kamrup on the same set of charges, the Inquiry Officer could not have come to his own findings that the charges were approved. However, the Director of Sericulture Department as a disciplinary authority and not being satisfied with the show-cause reply of the petitioner, vide order dated 16.5.2007 (Annexure 8) ordered dismissal of the petitioner from service with immediate effect and restricting her entitlement only to the subsistence allowance until 15.5.2007. The petitioner thereafter being aggrieved with the order of dismissal filed an appeal before the Secretary to the Government of Assam, Handloom, Textile and Sericulture Department which was received by the said authority on 15.6.2007. The appellate authority found no grounds to interfered with the disciplinary authority and, therefore, dismissed the appeal of the petitioner vide order dated 7.9.2007 (Annexure 9). The appellate authority found no grounds to interfered with the disciplinary authority and, therefore, dismissed the appeal of the petitioner vide order dated 7.9.2007 (Annexure 9). Upon dismissal of the appeal, the petitioner approached this court by filing WP(C) No. 6085 of 2007. The writ petition was, however, withdrawn by the petitioner on 3.12.2007. The order dated 3.12.2007 should be reproduced herein below for ready reference: “Mr. P.D. Nair, the learned counsel for the petitioner, prays for liberty to withdraw this writ petition. Liberty as prayed for is granted. The writ petition is closed on withdrawal.” 7. The Criminal Proceeding before the Court of Chief Judicial Magistrate, Kamrup at Guwahati which was registered as G.R. Case No. 2598 of 2004 under section 342/323/384/392/506/34, IPC was disposed of by the trial court vide judgment and order date 16.6.2007 (Annexure 10). By the said verdict the trial court having found that the prosecution could not establish the guilt of accused persons (the writ petitioner along with Pranjit Talukdar) removing all shadow of doubt and given the benefit to the accused persons and consequently, the accused persons were held not guilty of offence alleged against them and were acquitted on benefit of doubt. Since after the petitioner was acquitted by the trial court, she submitted an application before the Director of Sericulture Department on 27.7.2012 (Annexure 11) through her counsel, praying for her reinstatement into service, however, the authority concerned having failed to reinstate the petitioner in her service, the instant writ petition was again instituted by the petitioner on 3.12.2013. 8. Mr. R.C. Saikia, the learned counsel for the petitioner submits that the petitioner was dismissed from service in clear violation of rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (‘Discipline and Appeal’) and also in violation of article 311 of the Constitution of India. Although the petitioner was served with the show-cause notice dated 30.6.2005, the respondent-authorities failed to supply her the list of documents that were named in the show cause notice including the FIR that was said to be lodged on 28.6.2004. Although as many as 4 witnesses were named in the show cause notice, the petitioner, however, was not given any opportunity to cross-examine the witnesses during the inquiry proceedings. Although as many as 4 witnesses were named in the show cause notice, the petitioner, however, was not given any opportunity to cross-examine the witnesses during the inquiry proceedings. She was also not given a defence assistance to present her case and, therefore, the inquiry proceedings clearly being vitiated for not following the establish procedure established by law as well as for not having followed the opportunity of natural justice. Conclusion or findings arrived at by the Inquiry Officer cannot be sustained. Mr. R.C. Saikia by referring to rule 9 of the Discipline and Appeal Rules, 1964 submits that sub-rules (1), (2), (3), (4), (5) and (6) have dearly been given an act of the respondent-authorities. He submits that in fact it is mandatory on the part of the departmental authorities to supply the petitioner all the documents which they intend to rely upon the in the inquiry proceedings and thereafter, appoint a defence assistance so that the petitioner can present her case. Further, since the charges set out in the show-cause notice are sought to be proved by addressing oral and documents, it is mandatory in the part of the Inquiry Officer to offer the petitioner a chance to examine the prosecution witnesses. 9. The said procedure have not been adopted, the entire inquiry proceedings is clearly vitiated and should be interfered with by this court appropriately. 10. Mr. R.C. Saikia further submits that in the reply to the first show cause notice as well as the appeal filed by the petitioner before the appellate authority, she has been deprived of from the opportunities to properly present her case on account of denial of the documents and cross-examination of the witnesses. He submits that in fact all the witnesses, examined during the departmental proceedings, are the employees of the Directorate itself and, therefore, in the absence of any independent witness great prejudice has been caused to the petitioner and the inquiry was concluded in most bias way and, therefore, it is unsustainable. He further submits that the trial court based on the said set of facts and on the same charge had examined the allegations against the accused persons in which the petitioner also one of the accused. 11. He further submits that the trial court based on the said set of facts and on the same charge had examined the allegations against the accused persons in which the petitioner also one of the accused. 11. From the conclusion arrived at by the trial court vide its judgment and order dated 16.6.2012, the trial court upon considering the case of the prosecution came to clear finding that the guilt of the accused could not be established by the prosecution and, therefore, the petitioner was held to be not guilty of the alleged offence and accordingly, concluded. He submits that since the depart mental inquiry proceedings willfully relied upon the FIR and the statements made by the informant, upon giving relief to the petitioner by the trial court, the findings of the Inquiry Officer cannot therefore, be sustained. 12. Under such circumstances, he submits that the petitioner should be reinstated into service and the impugned order of dismissal from the service should be set aside and quashed. The petitioner on such reinstatement should also be given all the benefits that would be due to her, if she had not been dismissed from service. 13. Mr. R.C. Saikia in support of his submission have relied upon the following decisions: (i) Upendra Nath Misra v. Union of India, 2017 (2) GLR 357 (ii) Sh. Pazawna v. State Bank of India, (2009) 6 GLR 27 (iii) Rajen Bhuyan v. State of Arunachal Pradesh, 1994 (1) GLR 364 (iv) Kashinath Dikshita v. Union of India, (1986) 3 SCC 229 : AIR 1986 SC 211 (v) T.K. Chakraborty v. State of Arunachal Pradesh, 2009 (5) GLT 77 (vi) Uma Prassad Gogoi v. State of Assam, 1996 (3) GLT 513 14. In the case of Upendra Nath Misra (supra) a Division Bench of this court held that the scope of judicial review on departmental action is limited but when the principles of natural justice has not been complied with which may be in the form of non-supply of documents relied upon during the departmental inquiry, the inquiry would stand vitiated. In the case of Sh. Pazawna (supra) a Single Bench of this court held that disciplinary proceedings conducted in violation of the rules governing the proceeding and non-affording of opportunity to cross-examine the witnesses produced against the charged officer would vitiate inquiry. In the case of Sh. Pazawna (supra) a Single Bench of this court held that disciplinary proceedings conducted in violation of the rules governing the proceeding and non-affording of opportunity to cross-examine the witnesses produced against the charged officer would vitiate inquiry. In the case of Rajen Bhuyan (supra), a Single Bench of this court held that it was the duty of the inquiry officer to inform the delinquent officer that he has right to be assisted by another Government servant of his choice as a defence assistance. In the case of Kashinath Dikshita (supra) the Apex Court held that non-supply of documents cited in the evidence and denial of copies of statements of witnesses examined during investigation and produced at the inquiry would vitiate the inquiry proceedings and on such grounds the Apex Court interfered with the order of dismissal of the employee concerned while preventing the authority concerned from holding a fresh inquiry. Similar decisions have been made by this court on the issue of non-supply of documents and non-compliance of the mandatory provisions of the disciplinary rules in the cases of T.K. Chakraborty (supra) and Uma Prassad Gogoi (supra). 15. Mr. M.R. Adhikari, the learned Government advocate, Assam, for the State respondents submits that the petitioner was dismissed from service upon holding a regular departmental proceedings as per the relevant rules and since the Inquiry Officer has come up with the finding that the charges against the petitioner has been proved to the disciplinary authority after giving due opportunity to the petitioner to present her case against the inquiry report, dismissed her from service. 16. Mr. M.R. Adhikari at the outset submits that the writ petition is not maintainable, inasmuch as, the petitioner had approached this court earlier by filing WP(C) No. 6085 of 2007 praying for similar reliefs and taking similar grounds. The writ petition was withdrawn by the petitioner on 3.12.2007 without any liberty to file a fresh writ petition, the second writ petition filed by the petitioner on the same cause of action cannot be maintained. In this connection he re lies upon the decision of the Apex Court passed in Sarguja Transport Service v. State Transport Appellate Tribunal MP, Gwalior, (1987) 1 SCC 5 . By referring to the said judgments Mr. In this connection he re lies upon the decision of the Apex Court passed in Sarguja Transport Service v. State Transport Appellate Tribunal MP, Gwalior, (1987) 1 SCC 5 . By referring to the said judgments Mr. M.R. Adhikari submits that once a case is withdrawn or disposed without any liberty, a second writ petition under article 226 cannot be entertained. Although the aggrieved person can avail remedy under article 32 of the Constitution of India or file an appropriate suit in a civil court, the writ petition under article 226 otherwise cannot be entertained. He therefore, submits that since the petitioner fails to take the liberty to file a fresh writ petition earlier, the present writ petition should be dismissed as not being maintainable on this ground. 17. Mr. M.R. Adhikari, the learned Government advocate on merits submits that it is permissible in law to have simultaneous proceedings, i.e., one in departmental and the other criminal proceedings. He submits that it is a well settled principle of law that in case of departmental proceedings, the charges are sought to be proved on the materials available and on the grounds of preponderance of probability unlike the criminal proceedings where the charges are to be proved be yond the reasonable doubt. Likewise although the allegation against the writ petitioner was against certain illegal action committed by her, the charge against the petitioner was that of moral turpitude, the inquiry officer by considering the materials available came up with his inquiry report whereby the action of the petitioner and her involvement could be made out and, therefore, based upon such findings the disciplinary authority decided to impose upon her the penalty of dismissal from her service. Whereas in the criminal proceedings the prosecution failed to establish the case against the petitioner and for which the benefit of doubt was given to the petitioner that only cannot be the ground for reinstatement of the petitioner in her post. In this connection he refers to the decision of the Apex Court rendered in the State of West Bengal v. Sankar Ghosh, (2014) 3 SCC 610 , wherein the dismissal order by the petitioner/respondents in that case was found to be justified despite being acquitted by the criminal court. In this connection he refers to the decision of the Apex Court rendered in the State of West Bengal v. Sankar Ghosh, (2014) 3 SCC 610 , wherein the dismissal order by the petitioner/respondents in that case was found to be justified despite being acquitted by the criminal court. It was held that the onus in a criminal case is upon the prosecution to establish the guilt of the accused and if it fails to establish the guilt beyond the reasonable doubt the accused is assumed to be innocent. The Apex Court upon noticing that an independent departmental proceedings was in fact provided by the Regulation that was applicable to the petitioner/respondent, automatic reinstatement claimed by the employee therein was rejected. He, therefore, submits that the case in hand is clearly covered by the decision of the Apex Court in Shankar Ghosh (supra) and, therefore, the respondent-authorities having come to an independent finding the decision made therein should not be interfered by this court. Mr. M.R. Adhikari has also produced the relevant records of the department by which the departmental proceeding was drawn and complete against the petitioner. 18. I have heard the learned counsel for the parties and I have perused the materials available including the records produced by the learned Government advocate. 19. The questions to be decided are whether the writ petition having not been withdrawn with liberty to file afresh can be entertained for a second time. Secondly, as to whether the departmental proceeding against the writ petitioner has been conducted in violation of the Discipline and Appeal Rules, 1964 and lastly, as to whether the petitioner can be reinstated into service upon being acquitted by the criminal court. 20. With regard to the maintainability of the writ petition on account of the earlier writ petition having been withdrawn without liberty to file a fresh, the decision relied upon by Mr. M.R. Adhikari, the learned Government Advocate, i.e., Sarguja Transport Service (supra) has been considered. However, the facts and circumstances to apply the said ratio may not be similar inasmuch as the earlier writ petition was withdrawn by the petitioner on 3.12.2007 when the criminal proceedings against her was pending. The criminal trial under G.R. Case No. 2598 of 2004 came to be disposed of vide judgment and order dated 16.6.2012 wherein the petitioner was acquitted from all the charges. The criminal trial under G.R. Case No. 2598 of 2004 came to be disposed of vide judgment and order dated 16.6.2012 wherein the petitioner was acquitted from all the charges. The petitioner in his present writ petition more particularly at paragraph No. 13 has stated about the filing of the earlier writ petition and withdrawal of the same but, however, the State respondents in their affidavit-in-opposition filed on 28.4.2014 has not raised any objection on the maintainability of the writ petition. Furthermore, an additional affidavit was field by the writ petitioner on 2.5.2017 whereby the order of withdrawal of the earlier writ petition, i.e., WP(C) No. 6085 of 2007 vide order dated 3.12.2007 has been annexed. Against the said affidavit the State respondents have not raised any objection. Upon being acquitted by the criminal court, the grounds to challenge the order of dismissal from service gets further fortified and cannot be said to have the same force with the writ petition filed before the conclusion of the criminal trial with acquittal. In that view of the matter I am of the considered opinion that the present writ petition should not be rejected solely on this technical ground as some developments have taken place in the interregnum. 21. The next question to be addressed is whether the departmental proceeding drawn up and concluded against the petitioner can be said to have done as per the relevant provisions of the Discipline and Appeal Rules, 1964. Rule 9 of the Discipline and Appeal Rules provides for the procedure for imposing penalties. Rule 9(1) provides that without prejudice to the provisions of the Public Servant (Inquiry) Act, 1850, no order imposing on a Government servant any of the penalties specified in rule 7 shall be passed except after an inquiry, held as far as may be in the manner hereinafter provided. 22. Rule 9(2) provides that the Disciplinary Authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant and he shall be required to submit within such time as may be specified by the Disciplinary Authority, a written statement of his defence and also to state whether he desires to heard in person. Such charges together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant and he shall be required to submit within such time as may be specified by the Disciplinary Authority, a written statement of his defence and also to state whether he desires to heard in person. Furthermore, at the time of delivering charges, the Disciplinary Authority shall invariably furnish to the Government servant a list of documents and witnesses by which each article of charges is proposed to be sustained. Furthermore, rule 9(3) provides that the Government servant shall for the purpose of preparing his defence, be permitted to inspect and take extracts from such official records as he may specify, provided that such permission may be refused if for reasons to be recorded in writing, in the opinion of the Disciplinary Authority such records are not relevant for the purpose or its against the public interest. Rule 9(5) also provides that the Government Servant may present his case with the assistance of any other Government servant approved by the Disciplinary Authority. It may also be noticed that rule 9(6) provides that the government servant shall be entitled to cross-examine witnesses who are examined in support of the charges and to give evidence in person and the adduce documentary and oral evidence in his defence. 23. Considering the above provision it can be seen that although charge was drawn up against the petitioner on the basis of the statement of allegation while preparing a list of documents and witnesses to prove the charge, the documents mentioned in the list of documents admittedly were not furnished to the petitioner. Although the petitioner submitted an application for examining the same, no such documents were given to her. At the same time no defence assistance was provided to the petitioner while as many as 4 prosecution witnesses were examined, the petitioner did not cross-examine any of the witnesses. The petitioner in her writ petition has specifically alleged that no opportunity to cross-examine the witnesses was given to her and in the absence of any materials to the contrary, the same would have to be accepted. On the perusal of the inquiry report submitted by the Inquiry Officer has also short of requirement contemplated by rule 9(7) of the Discipline and Appeal Rules. On the perusal of the inquiry report submitted by the Inquiry Officer has also short of requirement contemplated by rule 9(7) of the Discipline and Appeal Rules. Therefore, in my considered opinion, the disciplinary proceedings conducted against the petitioner and which ended in her dismissal from service, clearly contravene the provision of Discipline and Appeal Rules of 1964. 24. The question of reinstatement into service upon acquittal of the petitioner in the criminal trial would also be guided by several factors such as the similarity of the charge, the mode and manner in which she was acquitted, the finding of the trial court that the petitioner was innocent etc. There is no doubt with regard to the fact that on acquittal, reinstatement is not automatic. The authority relied upon by the learned Government Advocate in the case Sankar Ghosh (supra) is clear in this regard. The departmental authorities independent on the criminal trial are not debarred from initiating the departmental proceeding and drawing up conclusion based on such inquiry. Similarly in the instant case as well the departmental proceeding concluded that the charge against the petitioner stood proved and, therefore, dismissal from service was warranted. However, it may be seen that the entire allegation against the petitioner was based upon the FIR submitted against her and which in fact was the basis of the charge both in the departmental proceeding as well as in the criminal trial. Although the charge against the petitioner in the departmental proceeding was that for moral turpitude, the same was only based upon the contents of the FIR. 25. The admitted position is that the standard of proof in a criminal case is that the prosecution has to prove the guilt of the accused beyond reasonable doubt which in the instant case was not achieved or established and, therefore, it is under such circumstance that the petitioner and the co-accused were given the benefit of doubt and, thus, acquitted from the charge by the learned trial court. Therefore, the same in my considered opinion cannot be termed as an honourable acquittal or the petitioner being found innocent of the charges so as to merit her reinstatement. Therefore, the same in my considered opinion cannot be termed as an honourable acquittal or the petitioner being found innocent of the charges so as to merit her reinstatement. However, at the same time, the departmental proceedings drawn up against the petitioner having been found to be in violation of the relevant provisions of the Discipline and Appeal Rules, the order of dismissal from service imposed vide order dated 16.5.2007 in my considered view cannot be sustained. 26. In the result, the impugned order of dismissal dated 16.5.2007 and the impugned order dated 7.9.2007 passed by the appellate authority rejecting the appeal of the petitioner are hereby set aside. The respondents shall reinstate the petitioner forthwith. In view of the fact that the departmental proceeding was initiated way back in the year 2005 and completed in the year 2007, I am not inclined to grant liberty to the respondents to initiate de novo inquiry proceedings at this stage but at the same time considering the matter in its entirety, the petitioner shall not be entitled to back wages. The period between her dismissal and reintatement shall however be counted for the purpose of pension. 27. With the above observation and direction, the writ petition stands allowed to the extant indicated. No cost.