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2018 DIGILAW 1345 (GAU)

Mukul Kr. Sharma v. State of Assam

2018-09-13

NELSON SAILO

body2018
JUDGMENT : Nelson Sailo, J. Three writ petitions are taken up together for hearing since the issues involved are similar and they are being disposed of by this common Judgment and order. 2. Heard Mr. A. R. Bhuyan, the learned counsel who appears for the writ petitioner in WP(C) No. 2340/2016 and WP(C) No. 7661/2016. Also heard Mr. C. Goswami, the learned counsel who appears for the petitioner in WP(C) NO. 886/2017. Dr. B. Ahmed, the learned Standing Counsel, Irrigation Department appears for all the respondents in the three writ petitions. WP(C) No. 2340/2016 and WP(C) No. 7661/2016 are filed by Shri Mukul Kumar Sarma. The case of the petitioner in WP(C) No. 2340/2016 may briefly be noted. 3. The petitioner was initially appointed as Assistant Engineer in Irrigation Department under the establishment of Mangaldoi Division and thereafter, he was transferred to various places including Dhansiri Project Weir Division, Bhairab Kunda Udalguri etc. While he was posted as Sub-Division Officer at Sipajhar Sub-Division, he was promoted to the post of Executive Engineer and transferred to Kaili Kalang Integrated Division at Nagaon. Subsequently, he was transferred to Mangaldoi Division and in the office of the Chief Engineer, Chandmari. Lastly, he was promoted as Superintending Engineer and posted in the Monitoring Cell of the Chief Engineer, Irrigation Department at Chandmari, Guwahati. While the petitioner was working as such sometime in the year ending 2007, the Irrigation Department released Rs. 61.0 Lakhs under the AIBP Scheme and Rs. 2 Crore 12 Lakhs for BSC Scheme. This Scheme was under the Administrative Control of the Executive Engineer, Mangaldoi Division (Irrigation) and Sri Amulya Kumar Pathak was holding the post. The petitioner was also working as Assistant Executive Engineer in the said Division during the relevant time. An allegation was leveled against the petitioner that he was involved in the misappropriation of Government fund during his tenure in the said Division. As a result one Mr. P.C. Bhattacharya, Additional District Magistrate, Darrang conducted an enquiry and prepared a report. In his report, he made categorical finding that the petitioner prepared a false bill to facilitate the contractor concerned to withdraw a certain amount by succumbing to the pressure of the then Executive Engineer Sri Nagen Saikia. Thus, it was reported that the petitioner alongwith the other officers were guilty of siphoning Government money. In his report, he made categorical finding that the petitioner prepared a false bill to facilitate the contractor concerned to withdraw a certain amount by succumbing to the pressure of the then Executive Engineer Sri Nagen Saikia. Thus, it was reported that the petitioner alongwith the other officers were guilty of siphoning Government money. The report was communicated to the Chief Secretary by the Deputy Commissioner of Darang vide letter dated 18.09.2008. 4. Thereafter, vide office order dated 07.01.2012, Sri Deba Kumar Goswami, Additional Chief Engineer, I & QC Irrigation was appointed as a Enquiry Officer and Sri Apurba Kumar Changkakati, Executive Engineer I & QC Irrigation was appointed as the Presenting Officer to enquire into the allegation of misappropriation of fund. The Enquiry Officer upon conclusion of the enquiry submitted an enquiry report on 10.07.2012 with a finding that the petitioner alongwith the other charged officers were mentally pressurized by their Superior Officer to prepared the bill of Bhaskor Baruah against the work at Kuhiharkuchi Head Work. The bill was prepared without verifying the actual progress of the work and due to constant pressure from Superior Officers. It was observed that the petitioner and the other officers were made scapegoats. Therefore, the charge levelled against the petitioner and one Shri Tarini Jr, Sarma may be put to an end. As for the 3rd Officer Sri Subhash Chandra Talukdar, it was reported that the charges were not established against him. 5. No action was taken after the submission of the enquiry report but subsequently on 09.07.2014, the Secretary to the Government of Assam, Irrigation Department issued an order imposing a penalty of withholding 2 (two) increments with cumulative effect and w.e.f 01.04.2002 upon the petitioner by invoking the provision of Rules 7 (II) of the Assam Services (Discipline and Appeal) Rules, 1964 (Rules of 1964). Thereafter, a corrigendum was again issued on 30.07.2014 but with the same penalty. 6. Aggrieved, the petitioner thereafter, submitted a representation on 27.10.2014 to the respondent No. 1 for reconsidering the penalty imposed upon him but however, as the same was not considered, the petitioner is before this Court. 7. Thereafter, a corrigendum was again issued on 30.07.2014 but with the same penalty. 6. Aggrieved, the petitioner thereafter, submitted a representation on 27.10.2014 to the respondent No. 1 for reconsidering the penalty imposed upon him but however, as the same was not considered, the petitioner is before this Court. 7. In WP(C) No. 7661/2016, the same petitioner Mukul Kumar Sarma challenges his belated promotion to the post of Superintending Engineer on 08.09.2014 and claims that he should be promoted w.e.f 22.05.2013, i.e. the date on which his other batch-mates and juniors were promoted to the post of Superintending Engineer. 8. In WP(C) No. 886/2017, the same petitioner Tarini Kr. Sarma who was working as Assistant Engineer in the Mangaldoi Division of the Irrigation Department at the relevant time was also imposed with a penalty withholding 2(two) increments w.e.f 01.04.2002. Thereafter, a corrigendum was issued on 30.07.2014 imposing upon him the same penalty but by way of a detailed order and so, he has made a similar challenge to the penalty imposed upon him like the petitioner Sri. Mukul Kr. Sarma in WP(C) No. 2340/2016. 9. The main thrust of the arguments of the petitioners' in WP(C) No. 2340/2016 and WP(C) No. 886/2017 is that the respondent authorities in imposing the penalty of withholding two increments with cumulative effect upon them have violated the procedures prescribed under the Rules of 1964. The respondent authorities in fact did not frame any charge against the petitioners, no statement of allegation, list of documents and list of witnesses were provided to them. They were also not given a chance inspect the documents upon which the enquiry was contemplated against them. They also contend that with-holding the 2 (two) increments with cumulative effect amounts to imposition of a major penalty upon them and in fact, the same was made with retrospective effect from 01.04.2002, which otherwise is not permissible in law. Therefore, the impugned penalty imposed upon them vide order dated 09.07.2014 and corrigendum dated 13.07.2014 cannot be sustained and should be set aside and quashed. 10. On 02.08.2017, the Deputy Secretary to the Government of Assam, Irrigation Department filed an affidavit-in-opposition on behalf of the respondent No. 1. In the said affidavit, it is contended that the petitioners viz; Sri Mukul Kr. Sarma and Sri. Tarini Kr. 10. On 02.08.2017, the Deputy Secretary to the Government of Assam, Irrigation Department filed an affidavit-in-opposition on behalf of the respondent No. 1. In the said affidavit, it is contended that the petitioners viz; Sri Mukul Kr. Sarma and Sri. Tarini Kr. Sarma tried to shift the responsibility of the charges to their superior officers by maintaining that they were pressurized to prepare and counter sign inadmissible bills. They were both given the opportunity to file their written statement of defence. The Additional Chief Engineer, I & QC, Irrigation was also asked to cross verify the contention of the petitioners from the then Executive Engineer and Superintendent Engineer of Mangaldoi Division, Irrigation i.e., Sri Nagen Saikia and Karuna Baruah respectively. However, as the two officers had since retired from service, they did not appear for cross-examination or verification. Thereafter, the advice of the Accountant General was sought on the question of making a recovery of the misappropriate amount of money from the Government Service Officers as well as the retired officers as per the Provision Rules 466 (2) of the AFR. However, the Accountant General declined to give any view. Thereafter, due opportunity was given to the petitioners to make a representation against the penalty proposed to be imposed upon them vide communication dated 30.01.2014. Thereafter, after obtaining the approval of the Assam Public Service Commission vide their endorsement dated 04.07.2014, the disciplinary authority imposed the impugned penalty upon the petitioners. Since the petitioners were given due opportunity to submit their written statement against the charge, the procedure prescribed under law was dully followed and therefore, under the facts and circumstances, the writ petitions should be dismissed. 11. The claim of the petitioner in WP(C) No. 7661/2016 can only materialize depending upon the outcome in WP(C) No. 2340/2016 and WP(C) No. 886/2017 and therefore, the two writ petitions are being considered first. 12. The learned counsels Mr. A.R. Bhuyan and Mr. C. Goswami submits that the penalty imposed upon the petitioners were not preceded by any process as contemplated under the Rules of 1964. They submit that Rule 9 of the Rules of 1964 was clearly not followed inasmuch as no definite charges were framed against the petitioner and no opportunity was given to them or indicated whether they desired to be heard in person or otherwise. They submit that Rule 9 of the Rules of 1964 was clearly not followed inasmuch as no definite charges were framed against the petitioner and no opportunity was given to them or indicated whether they desired to be heard in person or otherwise. Therefore, the impugned order of penalty cannot be sustained in law and the same should be set aside and quashed. 13. Appearing for the Irrigation Department, Dr. B. Ahmed submits that the writ petitions are not maintainable due to non-joinder of parties and that Sri. Mukul Sarma could not have been promoted during the enquiry proceedings. He also submits that since the petitioners admitted to the charge and did not deny their involvement, enquiry in fact was not required in the first place. He further submits that the Rules of 1964 do not provide minute detail of the manner in which departmental proceedings are to be conducted. He submits that the principles underlying Rule 9 of the Rules of 1964 was otherwise very much observed and followed and therefore, no interference is called for from this Court. 14. I have considered the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the records of the departmental proceedings produced by Dr. B. Ahmed. As may be noticed, the question to be considered is as to whether the respondents have imposed the penalty upon the petitioners by following the provisions of Rules of 1964. For better appreciation, Rule 9 of the Rules of 1964 may be quoted as below:- 9. Procedure for imposing penalties. (1) 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 mariner hereinafter provided. (2) 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 be 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 be heard in person. 12.(1) At the time of delivering the 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. Explanation In this sub-rule (3) the expression "the Disciplinary Authority" shall include the authority competent under these rules to impose upon the Government servant any of the penalties specified in rule 7. (3) The Government servant shall, for the purpose of preparing his defence, be permitted to inspect and take extracts from 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 it against the public interest to allow him access thereto; Provided that when a Government servant is permitted to inspect and take extracts from official records due case shall be taken against tempering removal or destruction of records. (4) On receipt of the written statement of defence, or if no such statement is received within the time specified, the Disciplinary Authority may itself inquire into such of the charge as are not admitted or, if it considers it necessary so to do, appoint for the purpose a Board of inquiry or an Inquiring Officer. (5) The Disciplinary Authority may nominate any person to present the case in support of the charges before the Authority inquiring into the charges (hereinafter referred to as the inquiring Authority). The Government servant may present his case with the assistance of any other Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regards to the circumstances of the case so permits. (6) The enquiring Authority shall, in the course of the enquiry consider such documentary evidence and take such oral evidence as may be relevant or material in regards to the charges. (6) The enquiring Authority shall, in the course of the enquiry consider such documentary evidence and take such oral evidence as may be relevant or material in regards to the charges. The Government servant shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person and to adduce documentary and oral evidence in his defence. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witnesses examine any witness or to admit any document in evidence on the ground that his evidence or such document is not relevant or material it shall record its reasons in writing. (7) At the conclusion of the inquiry, the inquiring Authority shall prepare a report of the enquiry, recording its findings on each of the charges together with reasons therefore. * Explanations: - If in the opinion of the enquiring authority the proceedings of the enquiry establish any article of charge different from the original article of the charge it may record it findings on such article of charge. Provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has a reasonable opportunity of defending himself against such article of charge. (8) The record of the inquiry shall include - i. the charges framed against the Government servant and the statement of allegations furnished to him under sub-rule. (2); ii. his written statement of defence, if any; iii. the oral evidence taken in the course of the enquiry; iv. the documentary evidence considered in the course of the inquiry; v. the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry; and vi. a report setting out the finding on each charge and the reasons therefore, (9) The Disciplinary Authority shall, if it is not the Inquiring Authority; consider the record of the inquiry and record its finding on each charge. [(10) Major Penalties. a report setting out the finding on each charge and the reasons therefore, (9) The Disciplinary Authority shall, if it is not the Inquiring Authority; consider the record of the inquiry and record its finding on each charge. [(10) Major Penalties. If the Disciplinary Authority having regard to its findings on the charges and on the basis of evidence adduced during the inquiry, is of the opinion that any of the penalties specified in Clauses (iv) to (vii) of rule 7 should be imposed on the Government servant it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed: Provided that in every case where it is necessary to consult the Commission the record of the inquiry shall be forwarded by the Disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant. (11) Minor Penalties. If the Disciplinary Authority, having regard to its findings on the charges, is of the opinion that if any of the penalties specified in clauses (i) to (iii) of Rule 7 should be imposed, it is necessary to consult the Commission, shall do so, after consulting the Commission. (12) (a) Notwithstanding anything contained in this rule, it shall not be necessary to follow the procedure laid down in the proceeding sub-rules in cases where it appears to the authority competent to impose the penalty at the initial stage of the proceedings that the penalty of censure would be adequate, but if at any later stage it is proposed to impose any other penalty specified in Rule. 7 the procedure laid down in the said rules shall be followed. (b) No order imposing the penalty of censure shall however be passed, except after - i. the Government servant is informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be taken and given an opportunity to make any representation he may wish to make; and ii. such representation, if any is taken into consideration by the Disciplinary Authority. 15. such representation, if any is taken into consideration by the Disciplinary Authority. 15. From a perusal of Rule 9 as abstracted above, it may be noticed that the Disciplinary Authority is required to frame definite charges on the basis of the allegation on which the enquiry proposed to be held. Alongwith the charge, a statement of the allegation on which they are based is to be communicated to the delinquent officer in writing asking him to submit a written statement in defence and also, as to whether he desires to be heard in person. During the enquiry, the delinquent officer is also to be given a chance to cross-examine the witnesses and to adduce documentary and oral evidences. However from the facts narrated in the present case and also on perusal of the record of the departmental proceeding, such procedure was not adopted. It may be seen that the show cause notices issued to the petitioners by the respondent No. 1 on 20.05.2010 and 07.06.2010 were made the basis of the enquiry. It may further be noticed that the show cause notice was issued under Rule 7 of the Rules of 1964. Rule 7 otherwise provides for the nature of penalties, which can be imposed on a Government Servant. No doubt it is true that mere misquoting of the provisions will not vitiate the enquiry proceedings if the power to conduct such enquiry exists. However as may be noticed, the enquiry proceedings against the writ petitioners was conducted in a most casual and perfunctory manner. Furthermore, the impugned penalty of withholding 2 (two) increments with cumulative effect was imposed with retrospective effect from 01.04.2002 vide order dated 09.07.2014 and thereafter vide corrigendum dated 13.07.2014. It is also a settled law that a penalty cannot be imposed retrospectively. 16. In that view of the matter, upon considering the matter in its entirety, I am of the considered view that the impugned penalty imposed upon the petitioners vide order dated 09.07.2014 and corrigendum dated 13.07.2014 cannot be sustained. Accordingly, they are set aside. However the respondents will be at liberty to initiate fresh departmental proceedings if so advised but the same will have to be strictly as per the Rules of 1964 and not otherwise. Accordingly, they are set aside. However the respondents will be at liberty to initiate fresh departmental proceedings if so advised but the same will have to be strictly as per the Rules of 1964 and not otherwise. It is also made clear that if the Disciplinary Authority declines to draw fresh departmental proceeding against the petitioner Sri Mukul Kumar Sarma, a review DPC shall be convened at the earliest to reconsider him for promotion to the post of Superintending Engineer w.e.f. 22.05.2013 i.e. the date on which his juniors were promoted. 17. With the above observations and directions, the writ petitions are disposed of. No cost.