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2018 DIGILAW 1236 (GAU)

NRIPENDRA NARAYAN CHOUDHURY v. STATE OF ASSAM

2018-08-21

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. P. Kataky, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Additional Senior Govt. Advocate for the respondent authorities. 2. The petitioner who was serving as an UDA in the Dairy Development Department of the Govt. of Assam was subjected to a disciplinary proceeding in respect of certain charges, which included opening of an illegal account in the UCO bank and making false entries in the cash book and also for withdrawal of an amount of Rs. 3,00,00,000/- (Rupees Three Crore). Apparently, the said charge on its face value is a serious charge. It is stated that along with the petitioner another person namely, Dharanidhar Deka, who was the Deputy Director in the department was also investigated in connection with the same charge. 3. In the resultant situation, a disciplinary proceeding was drawn up against the petitioner and in the said disciplinary proceeding, the aforesaid Dharanidhar Deka was appointed as the Enquiry Officer. The Enquiry Officer submitted the enquiry report which is annexed as Annexure-9 page-42 of the writ petition. On the basis of the said enquiry report, an order dated 20.02.2013 was passed, by which, the DCRG & Leave Encashment benefit of the petitioner was permanently withheld by further providing that the petitioner is not entitled for regularization of the suspension period. The said enquiry report and the order dated 20.02.2013 imposing punishment on the petitioner pursuant to the disciplinary proceeding being DD/P1/35/5408(A) dated 11.09.2002 has been assailed in this writ petition. 4. One of the grounds taken by the petitioner is that the Enquiry Officer namely, Dharanidhar Deka, was also a co-accused along with the petitioner in the criminal case had been appointed as the Enquiry Officer and this by itself has vitiated the proceeding. 5. Mr. D. Nath, learned Addl. Senior Govt. Advocate also agrees to the extent that the coaccused having been appointed as the Enquiry Officer, there may be an element of biasness in the enquiry report so submitted or if not, it definitely cannot be ruled out of there being a possibility of any biasness. 6. In view of the above, as agreed by the learned counsel for the parties, both the enquiry report dated 21.07.2012 as well as the order imposing the punishment dated 20.02.2013 are hereby set aside. 6. In view of the above, as agreed by the learned counsel for the parties, both the enquiry report dated 21.07.2012 as well as the order imposing the punishment dated 20.02.2013 are hereby set aside. As the enquiry report as well as the order of punishment are set aside on a technical reason on the question of the eligibility of the Enquiry Officer to be so appointed, it is deemed appropriate that in the interest of justice, the respondent authorities shall now be at liberty to continue with the proceeding against the petitioner from the stage of appointment of the Enquiry Officer. If the respondent authorities so desire, they are at liberty to proceed with the proceeding by appointing an appropriate officer as the Enquiry Officer for doing the needful and there upon bring the process to its logical end. Depending upon the order to be passed in the proceeding to be so proceeded, the eligibility of the petitioner for his final pension shall be determined. 7. It is stated that although the petitioner is paid the provisional pension, but the same is not done as per the revised scale of pay to which the petitioner is entitled. To this extent, the respondent shall examine and pay the petitioner the provisional pension as entitled by him under the law. It is further provided that the disciplinary enquiry against the petitioner to be continued, if done so shall be brought to its logical end as agreed between the parties within a period of six months from the date of receipt of the certified copy of the order. Writ petition is accordingly disposed of.