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2018 DIGILAW 867 (GAU)

Shahjahan Ali v. State of Assam

2018-05-25

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT & ORDER : Achintya Malla Bujor Barua, J. Heard Mr. M.K. Choudhury, learned Senior Counsel for the petitioner. Also Mr. N. Sarma, learned Standing Counsel for the Secondary Education Department. 2. The petitioner who was serving as a Headmaster of Isabpur High School was suspended by an order dated 28.09.2012 and thereafter a show cause notice dated 29.01.2013 was issued containing the following charges: "(1). That while you were serving as Headmaster of Isabpur High School you have failed to submit Utilisation Certificate and Vouchers of the fund against the amount sanctioned to the school time to time as mentioned below : (a) Rs. 5,00,000/- (Five Lakhs) sanctioned under 12th Finance Commission Award 2009-10. (b) Rs. 75,000/- (Seventy Five Thousand) sanctioned by R.M.S.A. for the year 2010-11. (c) Rs. 25.000/- (Twenty Five Thousand) minor repairing grant. As such you are charged with misappropriation of Govt. money for your pecuniary gain. (2). That while you were serving as Headmaster of Isabpur High School under Barpeta District you are found most irregular in your duty and most of the days of a month remained absent from School duty without any intimation to the Higher authority. You attended the School very late and leaves the School early before scheduled time of departure. As such it is observed that it leads to the total failure of School administration and negligence of duty. You are therefore charged with negligence of duty and insubordination of higher authority and failure of school administration to run the school as Head of the Institution." 3. The show cause notice clearly states that it was issued under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (for short, 1964 Rules). When the show cause notice and the statement of allegation submitted along with is examined, it is noticed that nowhere in the show cause notice nor in the statement of allegation any mention is made as to the list of witnesses and documents upon which the disciplinary authorities seek to rely upon. 4. The petitioner submitted his reply to the show cause notice on 22.05.2013. Thereafter, it is stated that some kind of enquiry was held, and it is the allegation of the petitioner that he was not allowed to cross examine the witnesses nor the documents relied upon by the authorities were given to him for his examination. 4. The petitioner submitted his reply to the show cause notice on 22.05.2013. Thereafter, it is stated that some kind of enquiry was held, and it is the allegation of the petitioner that he was not allowed to cross examine the witnesses nor the documents relied upon by the authorities were given to him for his examination. By following the said procedure, the order of 06.03.2014 was passed by the Director of Secondary Education Department, Assam. 5. In the order of 06.03.2014 the charges against the petitioner was recorded and, thereafter, it was stated that he was given ample opportunity to defend himself. The order thereafter provides that under Rule 7 of the 1964 Rules, the petitioner has been removed from service. After providing for the petitioner having removed from service, a further provision was made that a copy of the enquiry report may be sent to the petitioner along with the order of removal. The show cause notice dated 29.01.2013 and the order of removal dated 06.03.2014 are assailed in the writ petition for non conformity with the requirements of Rule 9(2) of the 1964 Rules and for being in violation of the established procedure, respectively. 6. Admittedly, the show cause notice nowhere indicates that the petitioner was provided with the list of documents nor it is indicated that he was provided with the list of witnesses. 7. Rule 9(2) of the 1964 Rules provides that 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 of the Article of Charges are proposed to be sustained. The expression 'invariably furnish to the Government servant' indicates that it is a mandatory requirement and any deviation thereof would vitiate the show cause notice itself. Further when the order of removal of 06.03.2014 is looked into it is noticed that the petitioner was first removed from service, and, thereafter, the disciplinary authority orders that a copy of the enquiry report be sent to the petitioner. 8. To that extent Mr. N. Sarma, learned Standing Counsel for the Education Department seeks to refer to the records of the proceeding wherein an order dated 28.02.2014 is available which provides that the enquiry report be sent to the petitioner. 9. 8. To that extent Mr. N. Sarma, learned Standing Counsel for the Education Department seeks to refer to the records of the proceeding wherein an order dated 28.02.2014 is available which provides that the enquiry report be sent to the petitioner. 9. But, be that as it may, the records does not reveal in any manner that the enquiry report was served on the petitioner prior to the order of removal. 10. In view of the materials available on record and also considering the provision of the order dated 06.03.2014, it is concluded that the enquiry report was not served on the petitioner prior the order of removal was passed. The law regarding the requirement of serving the enquiry report on the delinquent has been settled by the Supreme Court in plethora of cases, including the judgment and order rendered in Managing Director, ECIL, Hyderabad v. B. Karunakar and Others reported in (1993) 4 SCC 727 . As it is an admitted position of the respondent authorities that the enquiry report was not served on the petitioner prior to the order of removal of 06.03.2014, on that ground alone the said order of removal is not sustainable. 11. Further, in view of this Court, the entire disciplinary proceeding conducted against the petitioner stands vitiated inasmuch as the mandatory requirement of Rule 9(2) requiring the delinquent to be provided with the list of documents and witnesses has also not been complied. 12. In view of both the conclusions as indicated above, the order of removal dated 06.03.2014 is hereby set aside. 13. It is stated by Mr. M.K. Choudhury, learned Senior Counsel for the petitioner that against the order of removal, a statutory appeal was also preferred, but by the order dated 26.02.2015, the appeal was dismissed without giving any consideration to the grounds taken therein. As the order of removal has been interfered, it is provided that the appellate order dated 26.02.2015 shall be of no relevance. 14. However, the setting aside of the order of removal and interfering with the disciplinary proceeding initiated by the show cause notice dated 21.09.2013 shall not preclude the respondent authorities from further proceeding against the petitioner, if so advised. But in doing so, the procedure prescribed under Rule 9 of the 1964 Rules shall be strictly followed. 15. 14. However, the setting aside of the order of removal and interfering with the disciplinary proceeding initiated by the show cause notice dated 21.09.2013 shall not preclude the respondent authorities from further proceeding against the petitioner, if so advised. But in doing so, the procedure prescribed under Rule 9 of the 1964 Rules shall be strictly followed. 15. Before concluding, it is observed with dismay that the manner in which the disciplinary authority was conducted has to be deprecated. It is not a case that there was minor aberration of the procedure at some stage, but it appears that from the very initiation of the proceeding the disciplinary authority had proceeded in a manner contrary to the requirements of Rules 9 of the 1964 Rules. Accordingly, the Chief Secretary to the Govt. of Assam is requested to conduct an enquiry as to why the disciplinary authority had acted in the said manner and submit a report to that effect. It is more so as the charges against the petitioner are serious in nature. 16. The setting aside of the order would have the implication that the writ petitioner shall be now reinstated in service. As regards back wages, in the event, the authorities do not intend to further proceed against the petitioner, the back wages thereof shall be paid. On the other hand, if the authorities proceed against the petitioner and arrives at a factual determination that the allegation against the petitioner is incorrect, in such event also the authority shall pass appropriate order for the back wages. As a corollary, if the finding is against the petitioner, the authorities may pass any order as per their discretion as regards back wages. 17. In determining the amount of back wages, if any, the authorities shall also form an opinion as to whether the petitioner was gainfully employed during the period for which he was not in service, and act accordingly. 18. A copy of the order be provided to Mr. N. Sarma, learned Standing Counsel for transmitting the same to the Chief Secretary to do the needful. 19. In terms of the above, this writ petition stands disposed of.