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2017 DIGILAW 419 (GAU)

Naba Kumar Deka Baruah v. State of Assam

2017-04-03

NELSON SAILO

body2017
JUDGMENT : 1. The facts of the case in brief is that the petitioner who was working as Circle Officer at the relevant time was asked by the Additional Deputy Commissioner, Kamrup (M) vide letter dated 3.12.2010 (Annexure B) to fix certain boundaries pursuant to applications received from the concerned pattadars by issuing appropriate notice to those concerned. However, in connection with the said instruction, vide notification dated 4.1.2011 (Annexure C), the petitioner was placed under suspension with immediate effect pending drawal of departmental proceedings against him. Consequently, a show cause notice was issued to the writ petitioner on 6.3.2012 (Annexure F) under rule 9 of the Assam Service (Discipline and Appeals) Rules, 1964 (the ‘Rules of 1964’) read with article 311 of the Constitution of India as to why any of the penalties prescribed in rule 7 of the said Rules should not be inflicted upon him. The show cause notice contained four charges along with statements of allegation, list of documents and list of witnesses. 2. The petitioner submitted his reply to the show cause notice on 12.3.2012 (Annexure G) denying the charges levelled against him. On the reply submitted by the petitioner, a parawise comments on the charges made against the writ petitioner was sought from then Additional Deputy Commissioner (Revenue) and the same was submitted by the person concerned on 22.6.2010 (Annexure H). 3. Consequently, the enquiry officer that was appointed submitted the enquiry report on 2.2.2013 (Annexure K) whereby it was found that all the four charges were partially proved. The enquiry officer also recommended that the petitioner for his lapses be given a penalty of censure in terms of rule 7(i) of the Rules of 1964. Following the report, the Secretary to the Government of Assam, Personnel (A) Department (respondent No. 1) vide order dated 21.11.2014 (Annexure L) imposed a penalty of withholding two increments upon the petitioner without cumulative effect by taking to consideration charge No. 3 only. 4. The petitioner thereafter filed an appeal before the State Government which, however, was not considered and, therefore, he approached the Assam Administrative Tribunal by filing Case No. 13/ATA/2014. The learned Tribunal vide order dated 30.12.2014 disposed of the case by directing the State respondents to dispose of the petitioner's appeal by way of a speaking order within a period of 3 months. The learned Tribunal vide order dated 30.12.2014 disposed of the case by directing the State respondents to dispose of the petitioner's appeal by way of a speaking order within a period of 3 months. However, since the petitioner's appeal was not filed as per the provision of Rule of 1964, the appeal was withheld by the State respondents but later on disposed of vide order dated 22.1.2015 on technical grounds. 5. The petitioner again approached the Assam Administrative Tribunal by filing Case No. 2/ATA/2015 and the Tribunal vide order dated 7.2.2015 disposed of the case by directing the State respondents to dispose of the appeal on merit. Consequently, the departmental appeal of the petitioner was disposed of by the State Government vide order dated 13.5.2015 (Annexure M) by rejecting his appeal. 6. The petitioner yet again approached the Assam Administrative Tribunal against rejection of his appeal by filing Case No. 15/ATA/2015. The case was heard and disposed of by the Tribunal vide its judgment dated 5.12.2015 whereby the petitioner's case was dismissed. Thus, it is against the imposition of the penalty, dismissal of his departmental appeal and dismissal of case by the Tribunal that the writ petitioner is before this court by filing WP(C) No. 7900 of 2015. 7. At the outset, the learned counsel for the writ petitioner Mr. P.J. Saikia submits that since the disciplinary authority imposed the impugned penalty upon the petitioner on the basis of the findings against charge No. 3 only, he would, therefore, confine his argument only in respect of the findings against charge No. 3. The learned counsel submits that the enquiry officer vide his enquiry report dated 2.2.2013 found that the petitioner had issued notice for demarcation of land to the parties concerned on 21.12.2010 for carrying out demarcation. However, the parties concerned received the notice only on 27.12.2010 thereby depriving the party concerned of any time for objecting the same. The enquiry officer further found that the petitioner had issued two notices on 21.12.2010 and 24.12.2010 and such notice was actually served only on 27.12.2013, one day before the date fixed for demarcation. The enquiry officer, therefore, concluded that charge was partially proved. The enquiry officer further found that the petitioner had issued two notices on 21.12.2010 and 24.12.2010 and such notice was actually served only on 27.12.2013, one day before the date fixed for demarcation. The enquiry officer, therefore, concluded that charge was partially proved. However, the disciplinary authority by leaving out the other charges came to the findings that the charge No. 3 was established and since the petitioner failed to serve the notice for the demarcation to the concerned parties by giving them sufficient chance as per the Code of Civil Procedure, 1908 (‘CPC’), imposed the impugned penalty upon the petitioner by withholding two increments with cumulative effect vide order dated 21.11.2014 (Annexure L). The learned counsel for the writ petitioner submits that the enquiry proceeding was most perfunctorily conducted and the findings of the enquiry officer, the conclusion and imposition of the impugned penalty by the disciplinary authority and the rejection of the appellate authority are wholly perverse, whimsical and mechanical as there was no material available for imposition of the penalty. He further submits that in fact, no presenting officer was appointed and the enquiry officer performed the dual charge of an enquiry officer as well as the presenting officer. In support of his argument, the learned counsel has relied upon the decisions rendered by this court as well as the hon'ble Apex Court in the case of Salam Kesho Singh v. State of Manipur, 2011 (1) GLT 287, Nanda Nath Gam v. State of Assam, (2002) 1 GLR 510, Hem Chandra Chutia v. Assam Co-operative Apex Bank Ltd., (2014) 3 GLR 472 and State of Uttar Pradesh v. Saroj Kumar Sinha, (2010) 2 SCC 772 . 8. Appearing for the respondent Nos. 1 and 2, learned counsel Mr. A.K. Thakur submits that the petitioner was indeed responsible for laches in issuing the notice to the concerned parties for demarcation of land belatedly in as much as there was no time available to the parties to make their objection and prepare for the demarcation. He further submits that in terms of the relevant service rules, the finding of the enquiry officer is not binding upon the disciplinary authority. The disciplinary authority by making an assessment of the materials available from the departmental proceedings can come to its own independent finding. He further submits that in terms of the relevant service rules, the finding of the enquiry officer is not binding upon the disciplinary authority. The disciplinary authority by making an assessment of the materials available from the departmental proceedings can come to its own independent finding. Likewise in the instant case, the disciplinary authority found that the charge No. 3 in respect of the undue delay caused by the petitioner in serving the notice for demarcation was well established and, therefore, imposed upon the petitioner a penalty of withholding two increments without cumulative effect. He further submits that the said respondents and even the learned Assam Administrative Tribunal did not find, any substance in the grievance made by the writ petitioner and, therefore, this hon'ble court may likewise dismiss the instant writ petition. 9. The State arrayed as the respondent No. 3 is represented by Mr. A. Chakraborthy, the learned Government advocate. However, the respondent No. 3 has not contested the case. The Assam Administrative Tribunal although arrayed as the respondent No. 4 has to be only considered as an informal party in the instant proceeding. 10. I have heard the learned counsel for the rival parties and have carefully perused the materials on record. As noted earlier, the controversy about the imposition of penalty is mainly based against the charge No. 3. Pursuant to the instruction given to the petitioner by the Additional Deputy Commissioner on 3.12.2010, the petitioner issued notice for demarcation of land to the parties concerned on 21.12.2012 which was duly signed by him going by the findings of the enquiry officer in his enquiry report. That again on 27.12.2012, the petitioner again issued another notice to the same effect and in both the notices, the date fixed for demarcation was 28.12.2010. That it can be seen that such notice was received by the parties concerned on 27.12.2010, one day prior to the actual date fixed for the demarcation. The petitioner in his reply to the show cause notice had given an explanation that there were insufficient process servers at the relevant time and in fact there were only two process servers who had to deal with huge work load of urgent messages in addition to normal Dak File as well as Election and Census related letters. For that reason, notice could be delivered only on 27.12.2010. For that reason, notice could be delivered only on 27.12.2010. Chapter VII of the Rules under Assam Land and Revenue Regulation, 1886 (‘the Rules’) provides that the provisions of the CPC would apply in the mode of serving processes under the Assam Land and Revenue Regulation, 1886 (‘Regulations’). If that be so, there would be no difficulty even if the notice were not served on time. Therefore, even if the parties had received the notice only 27.12.2010, the day before the scheduled date for demarcation, on proper representation, another date for such demarcation could easily be obtained on account of late receipt of the notice. Still, even if one is to construe such action/inaction to be lapses on the part of the issuing authority and initiate a departmental proceeding, such authority would be required to follow the underlying basic principles governing a departmental enquiry. In the instant case, it can be seen that a presenting officer required to be appointed in terms of rule 1(5) of the Rules of 1964 was not appointed and as a result, the enquiry officer played the dual role of a presenting officer as well as the enquiry officer. Based on such enquiry, the respondent-authorities imposed the impugned penalty upon the writ petitioner. 11. In the case of Saroj Kumar Sinha (supra), it has been held by the hon'ble Apex Court that the enquiry officer cannot be permitted to play role of Prosecutor as well as Judge in a departmental enquiry. Similar was the view expressed by this court as well in the case of Salam Kesho Singh (supra) If such is the case, the departmental proceeding would stand vitiated. In the instant case as well, the respondent-authority having failed to appoint a presenting officer, the enquiry report cannot stand the test of law. 12. In the case at hand, although the enquiry officer submitted his report, by holding that all the four charges were partially proved, the disciplinary authority did not agree with the conclusion of the enquiry officer. The disciplinary authority, therefore, by coming to a finding that only charge No. 3 to be established imposed impugned penalty upon the petitioner. However, upon appreciating the deviation made by the disciplinary authority, it can be seen that the disciplinary authority did not assign reasons as to why the enquiry report was not accepted as it was. The disciplinary authority, therefore, by coming to a finding that only charge No. 3 to be established imposed impugned penalty upon the petitioner. However, upon appreciating the deviation made by the disciplinary authority, it can be seen that the disciplinary authority did not assign reasons as to why the enquiry report was not accepted as it was. The disciplinary authority can no doubt accept or reject the enquiry report made by the enquiry officer but, however, while rejecting such enquiry report, the disciplinary authority is required to assign valid reasons for coming up with a different conclusion. In the instant case, there are no materials available on record to show that the conclusion and decision arrived at by the disciplinary authority besides what was found by the enquiry officer are based on evidence and examination of documents and witnesses. 13. In the case of Nanda Nath Gam (supra), it has been held by this court that if the disciplinary authority is not willing to accept the enquiry report, the disciplinary authority is required to record the reasons for non-acceptance of the same and in the absence of which, consequential orders, i.e., the charge would stand vitiated. That since the entire charge ultimately revolves around charge No. 3, the respondent-authorities solely on the basis of belated issuance of the notice for demarcation cannot impose the impugned penalty of withholding of two increments without cumulative effect upon the petitioner in as much as the question of not allotting sufficient time prior to the demarcation has not been specifically provided under either the CPC or the Regulation of 1886. 14. It is a settled law that courts normally do not interfere with the penalty imposed upon a delinquent officer but are concerned with the decision making process resulting into the imposition of a penalty. However, in the instant case besides other lacunas the enquiry is vitiated for want of appointment of a presenting officer and, therefore, the penalty imposed upon the petitioner on the given facts cannot be sustained. 15. Therefore, in view of the discussions made and under the facts and circumstances of the case, the writ petition is allowed and the impugned order of penalty dated 21.11.2014 (Annexure L), the order dated 13.5.2015 (Annexure M) rejecting the appeal and the Tribunal's Judgment dated 5.12.2015 (Annexure Q) passed in Case No. 15/ATA/2015 are hereby set aside and quashed. 15. Therefore, in view of the discussions made and under the facts and circumstances of the case, the writ petition is allowed and the impugned order of penalty dated 21.11.2014 (Annexure L), the order dated 13.5.2015 (Annexure M) rejecting the appeal and the Tribunal's Judgment dated 5.12.2015 (Annexure Q) passed in Case No. 15/ATA/2015 are hereby set aside and quashed. The petitioner shall be entitled to all such consequential benefits as would be permissible in law. 16. With the above observations and directions, the writ petition is accordingly disposed of. No costs.