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2017 DIGILAW 895 (GAU)

Asti Ram Kalita v. State of Assam

2017-07-11

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. PK Roy, learned counsel for the petitioner. Also heard Mr. LP Sarma, learned counsel for the Assam State Warehousing Corporation (for short, ASWC) and Mr. M.R. Adhikary, learned counsel for respondent No. 1. The petitioner is employed as a Lower Division Assistant (for short, LDA) in the ASWC and he is also the General Secretary of the Assam State Warehousing Employees Union, which is a registered union under the Trade Union Act, 1962. Being the General Secretary of a registered trade union, the petitioner is entitled to certain rights and privileges as may be provided under the Trade Union Act of 1962. Therefore, his conduct as an employee of the Corporation is also to be looked into from the said point of view. 2. In course of his employment, the petitioner was issued a show cause notice dated 08.06.2010 which contained 5(five) different charges. The charge No. 1 was that while the petitioner was working as an LDA in the Corporation, he had attended a meeting of the Karnadhar Samity on 07.05.2010 at about 5.30 P.M., in the Union's Office and that in the said meeting an unauthorized resolution was adopted bringing certain fictitious and baseless allegation against the Managing Director of the Corporation. It is also stated in the charge that in the meeting the petitioner had expressed certain dissatisfaction in the functioning of the Managing Director. 3. The second charge was that on 17.05.2010 at about 4. P.M., the petitioner had attended a meeting in the Office of the Union without taking prior permissible from the authority concerned by leaving his working place. The third charge was that the petitioner had attended an unauthorized meeting of the Executive Committee of ASWC Employees Union held on 20.05.2010 at 10 A.M., in the Head Office by submitting a casual leave application. 4. The fourth charge against the petitioner was that on 16.05.2010 the petitioner appeared in a local electronic media being the 'Prag News Channel' and made a statement against the Managing Director and the fifth charge was that the news item on the subject 'Role of the Managing Director Has Caused Destruction of Warehousing Corporation had been published, wherein the Employees Union had made allegations against the activities of the Managing Director. Along with the show cause notice, the statement of allegations had also been served on the petitioner which more or less is in the same terms as that of the charges mentioned in the show cause notice. 5. The petitioner, accordingly, submitted an application dated 11.06.2010 with a request that he may be allowed to inspect certain documents and furnish a copy thereof. In the said circumstances, the petitioner submitted a reply dated 24.06.2010, wherein he had stated that as he was not allowed to inspect the relevant documents and nor the document had been furnished to him in original, except the photocopies of some of the documents, therefore, the petitioner Submitted a reply denying all the charges made against him and also reserving his right to submit an additional written statement as and when he would be allowed to inspect the documents. 6. It is the case of the petitioner that as the petitioner was neither allowed to inspect any of the original document nor any further document was furnished to him, therefore, the said reply constituted the only reply of the petitioner against the charges made against him. On the aforesaid premises, it is stated by the learned counsel for the parties that an enquiry officer was appointed and an enquiry as required under the disciplinary proceeding was held against the petitioner. 7. By the letter dated 15.12.2010, the petitioner was served with a copy of the enquiry report. On a perusal of the enquiry report, it is noticed that the Presenting Officer had produced 7(seven) witnesses on behalf of the Management and had also submitted certain documents on their behalf. It is also stated in the report that the charged person and all the other witnesses were examined during the course of the enquiry. It has been stated in the enquiry report that the petitioner being the charged officer had taken the stand in the enquiry that as the meeting under charge No. 1 was held at 5.30. PM after the Office Hours, no permission was required to be taken from the authority and resolutions were taken for the greater interest of the Corporation. 8. PM after the Office Hours, no permission was required to be taken from the authority and resolutions were taken for the greater interest of the Corporation. 8. It was also stated that with regard to the first charge, the Presenting Officer produced the photocopies of the proceeding of the meeting held on 07.05.2010 although there was no indication in the enquiry report that the petitioner was given an opportunity to make his submission against such proceeding that was presented by the Presenting Officer. The aforesaid act of the Enquiry Officer in not allowing the petitioner to make his submission against the proceeding in the meeting has further relevance in the background of the case that the relevant documents to be relied upon by the Management had not been furnished to the petitioner nor he was allowed to inspect the same. 9. The enquiry report further states that the Presenting Officer had produced four witnesses for examination on behalf of the Management and the chief witness was one Anil Chandra Das, who was examined as witness No. 5. The report states that the said witness No. 5 had deposed that some members of the employees' union had assembled in the Union's Office on 17.05.2010 at 4. P.M., and, accordingly, the names of such employees were also stated. It was also stated that the said Anil Das immediately brought the same to the notice of the Managing Director, who had recorded his statement and required him to put his signature thereof. The three other witnesses examined on behalf of the Management testified that the said Anil Das had put his signature in the written statement made before the Managing Director. That apart, there was no further discussion in the enquiry report as regards the deposition of the said witnesses. 10. The enquiry report arrives at a conclusion that by attending the meeting without the permission from the Managing Director, the petitioner had disobeyed the ASWC Circular No. 180 issued vide Memo No. AWC-231/68/72 dated 06.02.1975 and also Regulation 32 and 33(6) of the Assam State Warehousing Corporation (Staff) Regulations, 1989. It is also seen in the enquiry report that the enquiry officer had not specified as to what is the content of the Head Office Circular nor does he mention the provisions of the Regulation 32 and 33(6) of the Assam State Warehousing Corporation (Staff) Regulations, 1989. It is also seen in the enquiry report that the enquiry officer had not specified as to what is the content of the Head Office Circular nor does he mention the provisions of the Regulation 32 and 33(6) of the Assam State Warehousing Corporation (Staff) Regulations, 1989. No correlation has been brought out by the enquiry officer as to the provision of such circular and regulation and as to in what manner and which conduct of the petitioner had violated any such provision of the said circular and the regulation. 11. In the absence of such finding by the enquiry officer, it is difficult for this Court to arrive at a conclusion that the petitioner had actually violated any such provision of the circular dated 06.02.1975 and the Regulation 32 and 33(6) of the ASWC (Staff) Regulations, 1989. While going through the enquiry report, it is also noticed that the enquiry officer had arrived at a conclusion that the three meetings that were held within the period of 14 days were not for any such beneficial cause or for any greater interest of the Corporation but were held only for criticizing the working procedure of the Managing Director. The enquiry officer also takes note that for the last few months during the course of his enquiry, he had gone through the business position of the Corporation and it was noticed that the business as well as the income of the Corporation had considerably increased. The said view of the enquiry officer was also made a basis for arriving at the conclusion that the charges against the petitioner had been proved. 12. In this respect, it is also noticed that in the enquiry report there is nothing to indicate that any material was produced by the Management to prove that during the tenure of the then Managing Director the business and income of the Corporation had increased. The enquiry officer had relied upon certain other enquiry which he had purportedly done beyond the enquiry conducted during the disciplinary proceeding. This Court is of the view that the report of such other enquiry cannot be made the basis to prove any allegation against the petitioner. 13. The enquiry officer had relied upon certain other enquiry which he had purportedly done beyond the enquiry conducted during the disciplinary proceeding. This Court is of the view that the report of such other enquiry cannot be made the basis to prove any allegation against the petitioner. 13. Further in the enquiry report as well as in this writ petition, the respondent authorities are unable to produce any material to indicate that even if the charges that were made against the petitioner is proved to be correct, the same would violate any requirement of law or any established procedure of the respondent Corporation. In such view of the matter also, this Court arrives at a conclusion that even if charges made against the petitioner are proved to be correct, still the same cannot be made to be the basis for inflicting any punishment against the petitioner, inasmuch as, the respondent Corporation had failed to prove that such allegation by itself violates any law or any established procedure notified by the Corporation. 14. On the basis of the aforesaid enquiry report, the Managing Director of the Corporation by his order dated 17.03.2011 had inflicted the punishment of reduction to lower service on the petitioner. In the order of punishment, the Managing Director arrives at a conclusion that upon considering all the relevant documents and evidences of the case, the charges against the petitioner had been fully proved and that undoubtedly the petitioner deserves a stringent punishment. Accordingly, the Managing Director feels that further continuation of the petitioner in service will be detrimental to the health of the Corporation. But subsequently, the Managing Director states that he had taken lenient view in awarding the punishment of reduction to lower service. 15. The Managing Director in his order of 17.03.2011 also expresses the view that the penalty of reduction to the lower service if imposed on the delinquent employee would enable him to discharge his duties in the Office of the ASWC. In this respect, it is noticed that neither in the charges nor in the enquiry report, there is any such conclusion that the petitioner is not otherwise discharging his duties as a bona fide employee of the Corporation. 16. In this respect, it is noticed that neither in the charges nor in the enquiry report, there is any such conclusion that the petitioner is not otherwise discharging his duties as a bona fide employee of the Corporation. 16. In such view of the matter also, it appears to this Court that the Managing Director had taken certain extraneous considerations in arriving at the conclusion contained in the impugned order of 17.03.2011. 17. Be that as it may, the petitioner had preferred a writ petition being WP (C) No. 1853/2011 against the order of the Managing Director dated 17.03.2011. The said writ petition was disposed of by granting liberty to the petitioner to prefer a departmental appeal raising all his grievances against the same. 18. Accordingly, the petitioner had submitted a departmental appeal and by the resolution No. 4 dated 02.11.2011, the Board of Director of the respondent ASWC had upheld the decision of the disciplinary authority as regards the findings of the charges against the petitioner, but at the same time had reduced the punishment to that of withholding 3 (three) increments with cumulative effect. Consequent thereof, the Managing Director had passed the order dated 20.11.2011 by which the penalty of withholding 3(three) increments was imposed on the petitioner pursuant to the decision of the Board of Directors. 19. In this writ petition, the enquiry report dated 10.12.2010, the order of punishment dated 17.03.2011, the decision of the Board of Directors dated 02.11.2011 and also the order of the Managing Director dated 21.11.2011 had been assailed. 20. As already discussed hereinabove, the entire basis of the order of punishment given by the Managing Director dated 17.03.2011, as well as the decision of the Board of Directors dated 02.11.2011 and the consequential order of the Managing Director dated 21.11.2011 are all based upon the enquiry report dated 10.12.2010. As this Court had already arrived at a conclusion that the manner and procedure followed by the enquiry officer in arriving at the conclusion that the charges against the delinquent had been proved is incorrect and also against the established procedure of law, this Court is of the view that the consequential order in the disciplinary proceeding based upon such enquiry report as well as the subsequent order of the Board of Director in reducing the punishment and upholding the findings against the petitioner is not sustainable. In terms of the above, this writ petition is allowed. The enquiry report dated 10.12.2010, the order of punishment dated 17.03.2011 and the decision of the Board of Director to uphold the findings against the petitioner dated 02.11.2011 and also the consequential order of the Managing Director dated 21.11.2011 are all set aside.