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2018 DIGILAW 673 (GAU)

Prafulla Nath Sarma v. State of Assam

2018-04-19

HRISHIKESH ROY

body2018
JUDGMENT & ORDER : 1. Heard Mr. N.C. Das, the learned Sr. counsel appearing for the petitioner. The learned Sr. counsel Mr. S.N. Sarma appears for the Publication Board of Assam, represented by its Secretary (respondent No.2). Mr. D. Nath, the learned Addl. Sr. Govt. advocate appears for the respondent No.1. 2. The challenge here is to the order dated 26.12.2008 (Annexure-IX) , whereby, the petitioner who was employed as UDA with the Publication Board of Assam, was dismissed from service in pursuant to a Disciplinary Proceeding. The charge against the delinquent as can be culled out from the show-caused notice dated 17.05.2006 (Annexure-IV) is that the UDA remained absent for 33 days from 01.06.2003 to 03.07.2003 and thus he committed a gross misconduct. The other charge related to the habitual absenteeism, for which the activities of the Publication Board, was impacted. It is relevant to mention here that the 3rd charge contained in the show-cause notice, was the subject matter of the challenge in the WP (C) No.2988/2006 and the learned Single Judge under his judgment dated 09.10.2007 (Annexure-V) held that this additional 3rd charge cannot be part of the present Disciplinary Proceeding, which was initiated earlier on 16.05.2005 (Annexure-III). 3.1 The legality of the disciplinary action is challenged on various grounds including violation of the procedure prescribed by Rule 9 of the Assam Service (Discipline and Appeal) Rules, 1964 (hereinafter referred to as the "Discipline Rules") in as much as the list of documents was not appended to the charge memo. 3.2 Since the absence period was subsequently regularized by granting earned leave without pay, the delinquent questions the logic of the penalization, for the alleged unauthorized absence. 3.3 But the main focus of the challenge by the learned Sr. counsel Mr. N.C. Das is the disproportionate penalty imposed for the relatively lesser misconduct of unauthorized absence. The Sr. counsel refers to the various penalties provided under Rule 7 of the Discipline Rules and contends that the punishment of dismissal was the harshest possible penalty and in the facts and circumstances of the present case, the same is wholly disproportionate to the misconduct committed by the delinquent. 4.1 On the other hand, Mr. S.N. Sarma, the learned Sr. counsel appearing for the Publication Board projects that the Publication Board is an independent entity and the Assam Service (Discipline and Appeal) Rules, 1964 meant for govt. 4.1 On the other hand, Mr. S.N. Sarma, the learned Sr. counsel appearing for the Publication Board projects that the Publication Board is an independent entity and the Assam Service (Discipline and Appeal) Rules, 1964 meant for govt. servants is not really applicable for the employees of the Publication Board. The counsel however concedes that since govt. officers on deputation supervise the works in the Publication Board, the disciplinary action was unwittingly initiated, under Rule 9 of the Discipline Rules. 4.2 The respondents argue that the delinquent had admitted his unauthorized absence but has cited certain local compulsion for his inability to report for duty and Mr. Sarma submits that such unauthorized absence coupled with the lack of commitment to the employer, can be a cause of major penalty for any employee. 5. It is relevant to note now that during the pendency of the case, the petitioner has reached the superannuation age on 31.08.2009 and therefore it is clear enough that even if there is interference with the dismissal order dated 26.12.2008 (Annexure-IX) , the petitioner cannot be reinstated in service. 6. As regards the infringement of Rule 9 (2) relating to failure to supply the list of documents with the charge memo, when the applicability of the Discipline Rules to the Publication Board is itself questionable, this Court would not like to dwell much on this aspect of the deficiency with the Disciplinary Proceeding, highlighted by the petitioners counsel. 7. However, even if the manner of conducting the Disciplinary Proceeding is kept out of judicial scrutiny, it must be determined whether the penalty is in proportion to the misconduct, since this aspect of the disciplinary action has caused certain amount of concern for the Court. As can be seen, several penalty options are available in Rule 7 of the Discipline Rules and for the delinquent who has already reached the superannuation age (31.08.2009), within 8 months of the dismissal order passed on 26.12.2008 (Annexure-IX), the punishment of dismissal in my assessment, does not match with the misconduct proved against the delinquent. In other words, the punishment shocks the conscience of the Court. 8. Following the above conclusion, the dismissal of the petitioner is declared to be disproportionate and the same is accordingly quashed. However since the charge as found is left intact, a commensurate penalty needs to be inflicted. In other words, the punishment shocks the conscience of the Court. 8. Following the above conclusion, the dismissal of the petitioner is declared to be disproportionate and the same is accordingly quashed. However since the charge as found is left intact, a commensurate penalty needs to be inflicted. Normally, the Disciplinary Authority should be asked to decide on the lesser penalty. But this is likely to cause delay and further suffering to the petitioner, whose case is pending in the Court since 2011, where punishment inflicted on 26.12.2008, is under challenge. Therefore in this case justice would be better served if the Court determines the appropriate penalty. Hence the penalty of dismissal is substituted with the penalty of compulsory retirement for the delinquent. By virtue of this order, due superannuation benefits to the petitioner should be disbursed by the employer. At this stage, the learned Sr. counsel Mr. S.N. Sarma submits that the Publication Board is under severe financial constraint and therefore the dues to the petitioner be allowed to be disbursed on installment basis. This prayer made by the counsel for the Publication Board is allowed. 9. With the above order, the case stands disposed of without any order on cost.