Baren Roy vs State of Assam and Others

A.H. Saikia, J.—I have heard Mr. B.P. Kataky, learned Sr. counsel assisted by Mr. PP Baruah, learned counsel appearing on behalf of the petitioner. Also heard Mr B J Talukdar, learned Govt. Advocate, Assam.

By this Writ application the petitioner has assailed the legality and validity of the impugned order dated 5.11.1995 passed by the Director, Secondary Education, Assam, respondent No.2.

The case of the petitioner is that while he was working as Assistant Teacher (Sanskrit) in the Bajall H.S. & M.P. School, he was put under suspension by office Order dated 31.8.1998 and a disciplinary proceeding was initiated against him with the following two charges namely (i) while he was working as an Assistant Teacher in the aforesaid school, he offered to obtain a transfer order of one Birinchi Kakati who was serving as Assamese Language Teacher in the B.N.M.P. School.Dholal in the District of Cachar to Chowkhuti High School, Barpeta on payment of Rs. 15000. He made this offer to one Narendra Nath Das (Kakati), father of Sri Birinchi Kakati and accepting a sum of Rs. 14,000 from said N. Das Kakati, delivered a transfer order bearing No.GB-EST/TRN/6/96/73 dt.15.6.1998 which was a forged one. The said transfer order was not signed by any of the authorised officers of the D.S.E. Office, Assam, Kahilipar nor the said order originated from the concerned files and the said forged order was never issued from the office of the D.S.E. Assam, Kahilipara, and (ii) The petitioner while was working in the said capacity of Assistant Teacher he himself had drafted the joining report/letter of Shri Birinchi Kakati, while Shri Kakati on the basis of the aforesaid forged order, manufactured and delivered by the petitioner to said Kakati, offered to join at Choukutl High School under Barpeta District.

On the basis of those charges, enquiry was held and the petitioner filed his reply on 5.3.1999 to the sow cause notice dated 26.9.1998 served upon him with the aforesaid allegations. On 5.11.1999 the Director of Secondary Education, Assam, Kahilipara issued the impugned order of termination of the petitioner from his service with immediate effect.

4.1 have perused the Impugned order dated 5.11.1999 terminating the service of the petitioner. On the face of the said order, it transpires that no enquiry report, as required under the law, has ever been communicated to the petitioner earlier to passing the impugned termination order inasmuch as, the impugned order dated 5.11.199S itself shows that the enquiry report was purportedly furnished to the petitioner only on 5.11.1999 i.e. the date on which the impugned order was passed. Moreover, it also goes to show that on 26.8.1998 and 8.6.1999 two witnesses namely Sri Narendra Nath Das (Kakati) and Sri Navajit Das (Kakati) father and brother of Birinchi Kakati respectively were called for hearing to the office of the respondent No.2 and their statements were recorded as written statements, when their names did not appear in the list of witnesses supplied to the petitioner along with show cause. That apart, it is very much clear that the petitioner was not given any opportunity of being heard as well as to cross examine those witnesses which is very much apparent on the face of the impugned order itself.

Mr. Katakey, learned Sr. Counsel appearing on behalf of the petitioner, advancing his arguments, has straight-way taken me through the relevant portions of the finding in the impugned order which run as follows:

"And whereas in replies to the charge Shri Birinchi Kakati has stated in writing that Sri B Roy had procured the transfer order and delivered the same to his father Sri Narendra Nath Das (Kakati).

And whereas all parties concerned as witness namely Sri Narendra Nath Das (Kakati) and Shri Navajit Das (Kakati) father and brother of Birinchi Kakati respectively were also called for hearing to this office on 26.8.1998 and 8.6.1999 accordingly they appeared and give their statements which had been recorded as written statement in the proceeding and accordingly their statement are scrutinised.

And whereas Sri B Roy and B Kakati also gave their statements in their proceeding and also submitted some documents and papers.

And whereas the documents written by Sri B Roy in respect of transfer order of Sri B Kakati have sent to the Forensic Science Laboratory (FSL) Guwahati for examination and the FSL have opined that those writing were of Sri B Roy."

Replying on those relevant findings. Mr. Katakey, learned Sr. counsel, has challenged the entire impugned order mainly on the grounds i.e. (i) there is a clear violation of Sub-Rule, (2) and (6) of the Rule 9 of the Assam Services (Disciplines & Appeal) Rules, 1964 if or short Rules,) (ii) the authority did not examine the witnesses who were named in the list of witnesses furnished to the petitioner and the list of the witnesses who were examined by the authoritie, was not supplied to the petitioner thereby depriving him of the right to know the witnesses; (iii) the petitioner was deprived of his right to cross examine the witnesses as required under Rule 9(6) of the Rules and (iv) there is a flagrant violation of the principles of natural justice.

It Is stated that the authority examined two witnesses namely Shri Narendra Nath Das (Kakati) and Sri Navajit Das (Kakati), father and brother of Birinchl Kakati respectively who were not at all named in the list of witnesses when as per list of witnesses the following names had been supplied to the petitioner as evident from the show cause notice dated 26.9.1998 made available In Annexure-4 to this Writ Petition.

Sri NC Bordolol, DDSE, Assam, Kahilipara.

Sri BN Kakati, BDSE, Assasm, Kahilipara, Guwahati-19.

Sri Achuyt Deka, Inspecting Auditor of office of the DSE, Assam.

It clearly reveals that the authority examined persons who were not named in the list of witnesses. On the other hand, more interestingly Sri Birinchl Kakati who was the beneficiary of the alleged forged transfer order, purportedly drafted and handed over to him by the petitioner, was not examined at all. Adding more peculiarity to the circumstances in passing the impugned order, it transpires that the entire allegation against the petitioner was based on the written statement filed by Sri Birinchi Kakati in his reply to the charges drawn against him wherein he stated that the petitioner drafted the transfer order and delivered the same to his father Sri Navajit Das (Kakati) as clearly evident from the finding already noted above. With this background, Mr. Kakatey, learned Sr. counsel submits that non-examination of Sri Birinchi Kakati who would have been the vital witness, has resulted in miscarriage of justice.

For the sake of convenience, it would be proper and appropriate to quote the following provisions of law:

"9 (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 communciated in writing to the Government servant, and he shall be required to submit, within a 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.

At the time of delivering 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.

The Inquiring Authority shall, in the course of the inquiry consider such documentary evidence and take such oral evidence as may be relevant or materials in regard to the charges. The Government servant shall be entitled to cross-examine witnesses 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 examined in his defence. If the Inquiring Authority declines to examine any witness or to admit any document in evidence on the ground that his evidence or such document is not relevant or material, if shall record its reasons in writing."

The aforesaid Rules are very clear and explicit. It provides that list of witnesses must be supplied to the delinquent and he must be allowed to cross examine the witnesses. As regards the legal provision of Rule 9 of Rules, it is settled law that Rule 9 is mandatory and violation of which shall amounts to vitiate the entire proceeding. This Court in 1972 itself has settled the law that the procedure provided by Rule 9 is mandatory (refer AIR 1972 gau 2 T.S. Srivastavav. State of Assam). This Court again in the following cases, reiterated the legal provision of the said provision and declared that the rule 9 carries mandatory provision as regards the procedure to be adopted by the authority in taking administrative action against the delinquent officer. The cases are (1) Dibya Hash Goswami v. Dibrugarh University and ore, reported in 1995 (2) GLJ 65, (2) Jalal Uddin Laskarv. State of Assam reported in 1995 1 GLJ 569, (3) Dibrugarh University v. Bhabananda Barman reported in (1997) 1 GLJ 4923 and (4) Madhav Ch. Das v. State of Assam reported in (1987) 2 GLR 210.

Mr. Katakey, Learned Sr Counsel further submits that from the date i.e. 26.8.1998 and 8.6.1999 as recorded in the impugned order, it candidly appears that on those dates, the petitioner was not given any opportunity of being heard but only one Sri Narendra Nath Das (Kakati) and Sri Navajit Das (Kakati) father and brother of Sri Btrinchi Kakati were examined for the reasons best known to the authority. They refrained from examining Sri Birinchi Kakati who was the main beneficiary for the alleged action of the petitioner. More interestingly, the affidavit-in-opposition, field by the Government in paragraph 8 depicts different story. In that paragraph it is stated that the Inquiry Officer called the petitioner on 14.5.1999 but due to some urgent official work the said officer could not conduct he hearing and examine the materials on record on 14.5.1999 and accordingly the petitioner was again asked to appear on 18.6.1999 for hearing and recording of statements.

The dates i.e. 26.8.1998 and 8.6.1999 appeared in the impugned order are not to be found in the paragraph 8 of the affidavit, contrary to that, some unknown dates have been put i.e. 14.5.1999 and 18.6.1999, as indicated above. On perusal of the records produced by Mr Talukdar, learned Govt. counsel, I do not find any such dates as motioned in the impugned order and counter affidavit. Another peculiarity has come to the fore that on 26.8.1998 the authority claimed to have examined the witnesses as mentioned in the impugned orders itself, when show cause notice was issued only on 26.9.1998 as already indicated herein above. No prudent person can permit the said contradiction of the dates of issuance of show cause notice vis-a-vis the examination of witnesses to be accepted under the law. This goes to show that examination of witnesses was started prior to the issuance of show cause notice which is surprisingly unknown to the service jurisprudence.

It is also contended that no enquiry report was furnished to the petitioner. In support of this contention, Mr. Katakey, learned Sr. Counsel has relied on the impugned order itself which clearly shows that the impugned order was issued on 5.11.1999 and in the said order it is also recorded that the inquiry report was sent to the petitioner on 5.11.1999. It is really absured and horrendous, how can an inquiry report be sent on the same date when the impugned order of termination was issued. It seems that the authority has completely made a mockery of the disciplinary proceeding by giving ''go bye'' to the settled procedure of such enquiry.

Strong reliance has been placed by Mr. Katakey, learned Sr. Counsel on two Apex Court verdict i.e. (i) Union of India and others Vs. Mohd. Ramzan Khan, and (ii) State of UP v. Harendra Arora reported in AIR 2001 SCW 2029. In Ramjan''s case (supra) the law has already settled that on completion of inquiry conducted by the investigating officer, the delinquent is entitled to the supply of a copy of the inquiry report along with all recommendation and failure of which shall hit the principle of natural justice. In Harendra Arora''s case (supra) the Apex Court held that non-supply of inquiry report would not cause any prejudice to delinquent, if show cause notice has already been sent to the delinquent employee after submission of Inquiry report. In other words, if the delinquent has been served a copy of show cause after submission of an inquiry report enabling him to file an appropriate and effective show cause before his termination, non-supply of enquiry report shall not prejudice the delinquent. What appears in the instant case is that neither any inquiry report nor any show cause before his termination was issued to the petitioner and failure of which has resulted in the violation of the principles of natural justice highly prejudicing the petitioner.

In addition to his argument, which have already been discussed above, the learned Sr. counsel also contends that withholding of the examination of Shri Birinchi Kakati, being the vital one, is also a clear violation of the principles of natural justice. In this regard, he has referred to a decision of the Apex Court in Hardwari Lal Vs. State of U.P. and Others, wherein their Lordships held that non-examination of vital witnesses shall result in non-observance of principles of natural justice.

Supporting the impugned termination order, Mr. B.J. Talukdar, learned Govt. Advocate strenuously argues that the allegation against the petitioner as regards the manufacturing a forged transfer order by accepting bribe, has been proved and, as such, his conduct is unbecoming of a School teacher and he has been rightly terminated by the authority by passing the impugned order. He also argues that since the judicial review of this Court is very limited regarding the interference with the disciplinary proceeding, the power of this court may be exercised sparingly in Interfering with such Impugned termination order based on disciplinary proceeding. He relies on a decision of Supreme Court in B.C. Chaturvedi Vs. Union of India and others, I have gone through the said ruling, but the same is not applicable in the present case wherein the impugned order of termination, on the face of it, suffers from illegality and non-compliance of the mandatory provisions of Sub-Rule (2) and (6) of Rule 9 of the Rules.

Having regard to the decisions cited hereinabove and upon hearing the learned counsel for the parties. I am of the considered view that the disciplinary proceeding on the basis of which the impugned order has been passed, was proceeded in total non-compliance of the mandatory provision of law as mentioned above and also in violation of principles of natural justice. Hence the proceeding was a perfunctory one and illegal. That being the position, this Court under Article 226 has enough power to interfere with such proceeding and accordingly the impugned order dated 5.11.1999 is hereby quashed and set aside.

Since the impugned order is found to be bad in law the respondents are directed to reinstate the petitioner forthwith in his service. It is made clear that the period of termination of the petitioner shall be treated as on duty and he shall be entitled to his regular salary and allowances from the date of his termination including the period of suspension, if otherwise, he has not been engaged in any other employment whatsoever, during the period of termination. It goes without saying that the competent authority shall be at liberty to proceed with the departmental proceeding de-novo if so advised.

In the result, writ petition is allowed. However, parties are to bear their own costs.