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2018 DIGILAW 1747 (GAU)

Harendra Nath Sarma v. State of Assam

2018-12-15

NELSON SAILO

body2018
JUDGMENT : NELSON SAILO, J. 1. Heard Ms. D. Borgohain, the learned counsel for the writ petitioner and Mr. B. Gogoi, learned Standing counsel for Finance Department for the respondent Nos. 1 and 2. Mr. C. Baruah, the learned counsel appears for the respondent Nos. 3 and 5. Also heard Mr. M.R. Adhikari, the learned State counsel for the respondent No. 4. 2. The petitioner has approached this Court for the second time. His earlier writ petition i.e. WP(C) No. 830 of 2009 was disposed of vide order dated 03.06.2014 by setting aside the penalty imposed upon him vide order dated 05.12.2009, while directing the petitioner to submit his representation against the enquiry report belatedly furnished to him on 12.02.2014. Upon receipt of the representation, the respondents were directed to examine the same in accordance with law and dispose the representation within a period of 45 days from the date of receipt of the order. The respondent Nos. 1 and 2 were also directed to give the petitioner an opportunity of hearing before taking a decision. 3. Pursuant to the above direction, the petitioner filed his representation before the respondent Nos. 1 and 2 on 16.06.2014 (Annexure-7) and thereafter, the respondent authorities after giving the petitioner an opportunity of hearing, passed an order vide Notification dated 09.01.2015 (Annexure-8) imposing a penalty of withholding 10% of the monthly pension of the petitioner for a period of two years with immediate effect while treating the period of suspension as on duty for pensionary benefits but limiting his salary for the period to the subsistence allowance only. It is this Notification dated 09.01.2015 which is under challenge in the present writ proceeding. 4. Facts of the case may be noticed at the outset. The petitioner who was working as Director, Institutional Finance, Finance Department under the Government of India was placed under suspension with immediate effect vide Office Order dated 30.04.2005 (Annexure-1) pending drawal of departmental proceeding. Thereafter, a show cause notice-cum-charge sheet was issued to him by the respondent No. 2 on 20.05.2005 (Annexure-2) on the following charges:- (i) Misappropriation of Government money amounting to Rs. 2850/- (ii) Misconduct and unbecoming of a senior Government Servant. 5. The following documents were also said to be brought against him as evidence:- (i) Copy of TA bill for Rs. 2850/- (ii) Misconduct and unbecoming of a senior Government Servant. 5. The following documents were also said to be brought against him as evidence:- (i) Copy of TA bill for Rs. 5,544.27 of Sri H.N. Sharma (ii) Tour Diary for December, 2004 and (iii) Report of Under Secretary, S.A. (A) Department. 6. By the said show cause notice-cum-charge sheet dated 20.05.2005, the petitioner was asked to submit a written statement in his defense within 10 days from the date of receipt of the communication provided he has no intention to inspect the documents which has relevance with the issues under enquiry. In case, he intended to inspect the documents, he should write to the respondent No. 2 within 7 days from the date of receipt of the communication and thereafter, submit his explanation within 10 days of the inspection. 7. On receiving the show-cause, the petitioner submitted a letter to the respondent authority concerned on 31.05.2005, requesting the inspection of the documents material in the enquiry and accordingly, vide notification dated 10.06.2005, issued by the Under Secretary to the Government of Assam, Finance (Establishment-B) Department (Annexure-3), he was allowed to make the inspection. Though, the petitioner inspected the documents, but however, vide his letter dated 15.06.2005, he requested the respondent No. 2 to furnish him the statement of allegations and a copy of the preliminary enquiry second. He also requested that he may be given further 2(two) weeks' time for submitting his written statement of the defense. 8. However, as the petitioner was given the opportunity to inspect all documents and statement of allegations were exhaustively incorporated under the show cause notice, the respondents authorities concerned declined to furnish him any document and as such, he was given 10 days time to submit his written statement. A communication to this effect was made to him on 30.01.2005. The petitioner still not satisfied vide communication dated 26.09.2005, requested the respondent No. 2 to supply him copies of all the relevant documents to be relied upon in the enquiry but his request again was declined. A communication to this effect was made to him on 30.01.2005. The petitioner still not satisfied vide communication dated 26.09.2005, requested the respondent No. 2 to supply him copies of all the relevant documents to be relied upon in the enquiry but his request again was declined. The petitioner was then re-instead from his suspension vide Notification dated 28.09.2005 and thereafter, the departmental proceeding was concluded by the respondent authorities by issuing a notification dated 05.12.2009 wherein, he was imposed with a penalty of withholding one annual increment with cumulative effect and his period of suspension was treated as on duty for pensionary benefits only. It was this Notification dated 05.12.2009 which was challenged by the petitioner in the earlier writ petition proceeding. 9. Appearing for the petitioner Ms. D Borgohain, the learned counsel submits that after the Notification dated 05.12.2009 was set aside by this Court, in WP(C) No. 830 of 2009, vide order dated 03.06.2014 and the petitioner as was permitted by this Court to file his representation before the respondent authority against the enquiry report of Enquiry Officer by giving a detailed grounds on the unsustainability of the enquiry and the ultimate penalty that was imposed upon him. But however, the respondent No. 1, vide the impugned order dated 09.01.2015 decided to impose a penalty upon the petitioner. She submits that no meaningful opportunity was granted to the petitioner to be heard by the respondent authority concerned and therefore, the impugned penalty cannot be sustained. She submits that no reason has been assigned by the disciplinary authority in passing the impugned Notification dated 09.01.2015. While passing the impugned Notification, the disciplinary authority relied upon the findings submitted by the then Principal Secretary to the Government of Assam, Finance Department on the personal hearing given to the petitioner. But however, such findings were not furnished to the petitioner. She also submits that the recommendation of the Assam Public Service Commission (APSC) on the penalty proposed on the petitioner was also not furnished to him. Therefore, the impugned Notification dated 09.01.2015 cannot be sustained. 10. But however, such findings were not furnished to the petitioner. She also submits that the recommendation of the Assam Public Service Commission (APSC) on the penalty proposed on the petitioner was also not furnished to him. Therefore, the impugned Notification dated 09.01.2015 cannot be sustained. 10. By referring to paragraph No. 16 of the writ petition, the learned counsel submits that the petitioner has taken the specific plea that the enquiry officer failed to take into account the relevant material evidence and the authenticity of the documents on the basis of which charge was framed has elaborately been questioned by the petitioner. However, the respondents have not made any specific denial of the averments made by the petitioner in their affidavit-in-opposition. Therefore, it can be presumed that the respondents have only admitted the vital discrepancies pointed out by the petitioner. 11. By referring to Rule-37(c) of the Manual of Office Procedure in the Secretariat, 1981, the learned counsel submits that a proper receipt register has to be maintained wherein all communications including tour notes are to be entered. However, the alleged tour notes based on which enquiry was conducted against the petitioner was not entered in the register of the establishment concerned in the Secretariat. Therefore, the allegations of the respondents that the petitioner submitted false tour diary to draw the TA Bill which was not due to the petitioner is only misconceived and therefore the impugned penalty imposed upon the petitioner is unsustainable. 12. The learned counsel also refers to the Subsidiary Rules-312 of the FR and SR to contend that TA Bill of the petitioner alleged to have been submitted by him was also not counter signed by the Controlling Officer concerned and therefore, the allegations that the petitioner withdrew an amount which was not due to him is also unfounded. The amount which was debited in the account of the petitioner was without his knowledge cannot be the ground for imposing the impugned penalty upon him. 13. The learned counsel further submits that as the petitioner has since retired from Government service, he is no longer in a position to submit an appeal against the impugned penalty and therefore, he has approached this Court through the present writ petition. 14. Ms. 13. The learned counsel further submits that as the petitioner has since retired from Government service, he is no longer in a position to submit an appeal against the impugned penalty and therefore, he has approached this Court through the present writ petition. 14. Ms. D. Borgohain, the learned counsel in support of her submissions has relied upon the following decisions of the Apex Court as well as of this Court:- (i) State Bank of India & Ors. Vs. D.C. Agarwal & Anr. AIR 1993 SC 1197 (ii) Punjab National Bank & Ors. Vs. Kunj Behari Misra, (1998) 7 SCC 84 (iii) S.N. Narula Vs. Union of India & Ors., (2011) 4 SCC 591 (iv) Guna Kanta Tamuli Vs. State of Assam & Ors., 2015 (1) GLT 237 15. Appearing for the Finance Department, Mr. B. Gogoi, learned Standing Counsel, Finance Department, submits that the petitioner could have filed an appeal in terms of Rule 15 of the Assam Services (Discipline and Appeal) Rules, 1964, (Rules of 1964). He submits that as per the said provision, a Government servant may file an appeal against an order imposing upon him any of the penalties specified Rule 7 of the Rules of 1964 to the appellate authority specified in this behalf in the schedule. However, the petitioner instead of exhausting such remedy has directly approached this Court. Therefore, the writ petition should be rejected on this ground alone. 16. Mr. B. Gogoi, the learned Standing Counsel, further submits that the petitioner did not file the reply against the show-cause notice that was issued to him. Nevertheless, he was allowed to inspect the documents. This Court while disposing of the earlier writ petition filed by the petitioner i.e. WP(C) No. 830 of 2009 directed the petitioner to file a representation against the inquiry report that was furnished to him on 12.02.2014. Thereafter, the respondents were directed to consider his representation and disposal of the same within a time frame of 45 days from the date of receipt of such representation. The respondent authorities in compliance with the direction duly considered the petitioner's representation while granting him an opportunity to be heard. It was only thereafter that a decision was taken to impose upon him the impugned penalty vide notification dated 09.01.2015. The respondent authorities in compliance with the direction duly considered the petitioner's representation while granting him an opportunity to be heard. It was only thereafter that a decision was taken to impose upon him the impugned penalty vide notification dated 09.01.2015. The finding of the Principal Secretary to the Government of Assam, Finance Department was only an additional finding and has no influence to the conclusion made by the disciplinary authority as alleged by the petitioner. 17. Mr. B. Gogoi, the learned Standing Counsel, Finance Department, by referring to Paragraph No. 11 of the affidavit-in-opposition filed by the respondent Nos. 1 & 2 on 05.01.2016 submits that the petitioner cannot have any grievance that he was not furnished with the views of the APSC, inasmuch as, he was provided with the same on 25.08.2015. Thus, the stand taken by the petitioner is only an afterthought. The petitioner himself being a practicing lawyer is only trying to raise technical flaws belatedly while there is no substance or merit in the writ petition. Mr. B. Gogoi thus submits that the writ petition should be dismissed. 18. I have heard the submissions advanced by the rival parties and I have perused the materials available on record including, the record produced by Mr. B. Gogoi. 19. From the case projected by the rival parties, it may be noticed that the petitioner was not given a copy of the inquiry report prior to the imposition of a penalty upon him on 05.12.2009. As a result, this Court vide order dated 03.06.2014 in WP(C) No. 830 of 2009 directed the petitioner, who in the meantime was furnished with a copy of the inquiry report, to submit his representation and thereafter, the respondents were directed to consider the same within a time frame. The specific allegation made by the writ petitioner that no reasons have been assigned by the disciplinary authority while passing the impugned notification dated 09.01.2015 and that the findings of the Principal Secretary to the Government of Assam, Finance Department, as well as the views and opinion of the APSC has not been effectively denied by the respondents in the affidavit-in-opposition filed by the respondent Nos. 1 & 2. However, they contend that the information sought by the petitioner through an RTI application was furnished to him on 25.08.2015. 1 & 2. However, they contend that the information sought by the petitioner through an RTI application was furnished to him on 25.08.2015. But, it may be noticed that the decision to impose the impugned penalty upon the petitioner was already translated vide the impugned notification dated 09.01.2015. No doubt, the petitioner applied for such information after the impugned notification dated 09.01.2015 was passed but the fact remains that the petitioner apparently had no opportunity to submit an effective representation viz.; after being supplied with the relevant materials which were against him. The record also reveals that the APSC tendered its views on 05.12.2014. Further, the impugned order issued vide notification dated 09.01.2015 itself also reveals that a finding was submitted by the Principal Secretary to the Government of Assam, Finance Department, after the petitioner was personally heard. Therefore, under the circumstance, it only appears that the petitioner was not given a reasonable opportunity to be heard before the impugned penalty was imposed upon him. 20. The Apex Court in the case of D.C. Agarwal & Anr. (Supra) in the facts and circumstances of that case, held that law on natural justice is so well settled from series of decisions of the Apex Court that it leaves one bewildered, at times, that such bodies like State Bank of India, who are assisted by hierarchy of law officers, commit such basic and fundamental procedural errors that Courts are left with no option except to set aside such orders. Imposition of punishment to an employee, on material which is not only not supplied but not disclosed to him, has not been countenanced by the Apex Court. Procedural fairness is as much essence of right and liberty as the substantive law itself. Thus, the plea taken by the appellant State Bank that the report of Central Vigilance Commission, based on which punishment was imposed upon the employee concerned, being a privileged document cannot be sustained. 21. In the case Kunj Behari Mishra (Supra), the Apex Court came to a finding that departmental inquiry against the delinquent officers stood vitiated on account of non-observance of the principles of natural justice and therefore, ordinarily in such case, remission of the matter to the disciplinary authority would be warranted. 21. In the case Kunj Behari Mishra (Supra), the Apex Court came to a finding that departmental inquiry against the delinquent officers stood vitiated on account of non-observance of the principles of natural justice and therefore, ordinarily in such case, remission of the matter to the disciplinary authority would be warranted. But having regard to the fact that both the employees had retired from service 14 years back, the Apex Court declined to remit the case back to the disciplinary authority and interfered with the penalty imposed upon the employees. 22. In the case of S.N. Narula (Supra), the Apex Court held that the principles of natural justice in that case was violated as the appellant was not communicated the UPSC report so as to enable the appellant an opportunity to make effective representation on the quantum of punishment prior to imposition of punishment. 23. In the case of Guna Kanta Tamuli (Supra), a co-ordinate Bench of this Court came to a finding in the given facts that Rule 9 of the Rules of 1964 had been violated as the principles of natural justice was not observed. Therefore, under the circumstances, considering the fact that the petitioner had attained the age of superannuation in the interregnum, declined to direct a de novo proceeding while quashing the impugned order. 24. In the present case, as already noticed, despite the direction of this Court in the earlier round of litigation, the disciplinary authority took into consideration the findings submitted by the Principal Secretary to the Government of Assam, Finance Department, as well as the view of the APSC which otherwise were not supplied to the petitioner. Under the circumstance, upon considering the case in its entirety including the law laid down by the Apex Court, I am of the considered opinion that the impugned notification dated 09.01.2015 is not sustainable. The submission of Mr. B. Gogoi that the petitioner did not exhaust the alternative remedy available to him by filing an appeal under Rule 15 of the Rules of 1964 may not vitiate the case of the petitioner, inasmuch as, in appropriate case, a writ proceeding may be entertained despite non-exhaustion of alternative remedy. Moreover, such was not the ground taken by the respondents in the earlier writ petition i.e. WP(C) No. 830 of 2009. Moreover, such was not the ground taken by the respondents in the earlier writ petition i.e. WP(C) No. 830 of 2009. Having regard to the fact that the petitioner retired from service on 30.11.2010 upon attaining the age of superannuation and considering the decision of the Apex Court in Kunj Behari Mishra (Supra), it will not be proper at this stage to remand the case back to the disciplinary authority. In the result, the impugned notification dated 09.01.2015 is set aside. The respondents shall ensure that the petitioner is paid all his arrear dues, pension and other benefits as expeditiously as possible and in view of the fact that the petitioner has retired from service about 8 years back on 30.11.2010. 25. With the above observations and directions, the writ petition stands disposed of as allowed. No order as to cost. 26. Let the Departmental records be returned to Mr. B. Gogoi, the learned Standing Counsel, Finance Department.