Md. Fakhrul Islam vs The State of Assam and others

Heard Mr. N.N. Upadhaya, learned counsel for the petitioner and Mr. T.C. Chutia, learned Additional Senior Government Advocate appearing for the State respondent authorities.

The petitioner, who was serving as a Forester Grade-I under the Forest and Environment Department, Government of Assam, was served with a show cause notice dated 21.02.2007. The first charge was that there was a connivance and involvement of the petitioner in illegal removal of forest produce. The said charge was substantiated on the facts that during the first week of June, 2006, the predecessor of the petitioner had reported that 20 numbers of valuable trees were felled inside the Ranga R.F under the jurisdiction of Kiming Beat at a time when the petitioner was in-charge of the Kiming Beat. The allegation was that the miscreants could remove all the valuable trees due to involvement and in connivance of the petitioner and that the petitioner had not initiated any action to report the matter to the higher authority.

The charge No.2 was of negligence of Government duty, which was substantiated on the allegation that while the petitioner was in-charge of the Kiming Beat from 01.09.2005 to 04.06.2006, 20 numbers of valuable trees were felled by some miscreants and were removed from the forest area, thereby causing a loss of Rs.1, 15, 483/-.

The charge No.3 was of unauthorized absence from Government duty and non submission of regular diary. The said charge was substantiated on the basis of the allegation that while the petitioner was the in-charge of Kiming Beat, he had frequently remained absent without proper authority, which had resulted in the illegal felling of the trees by the miscreants.

From a reading of the Charge Nos. 1 and 2, it is apparent that the allegation against the petitioner was that he had actively connived and participated along with certain miscreants in felling of some valuable trees and causing the trees to be removed from the forest area. On the other hand, the purport of the Charge No.3 is that the petitioner had unauthorizedly remained absent in duty and due to his absence, the miscreants could fell the trees and remove the same. Prima-facie, both the charges appears to be in conflict with each other.

Be that as it may, pursuant to the said show cause notice, the petitioner had submitted his reply. In the process, an enquiry was conducted by appointing the Divisional Forest Officer, Social Forestry Division, Lakhimpur as the Enquiry Officer. Upon completion of the enquiry, a report as forwarded by the communication dated 29.04.2009 was submitted. Based upon the said enquiry report, a punishment of withholding of two increments without cumulative effect was imposed on the petitioner by the order dated 08.05.2009 of the Conservator of Forest, Northern Assam Circle.

The order of punishment has been assailed in this writ petition on the ground that amongst others, the requirement of the procedure prescribed in Rule-9(6) of the Assam Services (Discipline and Appeal) Rules, 1964 was not followed in conducting the enquiry and further that the conclusion of the Enquiry Officer against the petitioner was solely based on the evidence of three of the departmental witnesses, but none of the evidences led by the departmental witnesses do prove the charges made in the show cause notice.

In order to appreciate the said contention of the petitioner, the enquiry report dated 29.04.2009 is examined. On a perusal of the enquiry report, it is noticed that as regards the Charge No.1, the Enquiry Officer relies upon the statements of Loknath Borgohain, Forest Ranger, A.R Pegu, Deputy Ranger and Md. Habibur Rahman, Forester-1. Nothing has been discussed in the enquiry report as to which part of the deposition of the aforesaid three witnesses proved the charge of there being connivance and involvement of the petitioner in removal of forest produce. Similarly, in respect of Charge No.2 also, the Enquiry Officer relies upon the statements of A.R Pegu, Deputy Ranger and Md. Habibur Rahman, Forester-1. But, again the Enquiry Officer did not discuss as to which statements of the aforesaid two witnesses proved the Charge No.2 of there being negligence of Government duty. Similarly, with respect of Charge No.3 also, it is noticed that the Enquiry Officer refers to the statements of the aforesaid three witnesses and also refers to the personal file of the petitioner.

In the aforesaid context, the statements of the said three witnesses namely, Loknath Borgohain, Forest Ranger, A.R Pegu, Deputy Ranger and Md. Habibur Rahman, Forester-1 had been perused. On a perusal of the deposition of the aforesaid three witnesses, no statements therein could be found, which proves the three aforesaid charges. In fact, in the statements of the witnesses, nothing has been stated about any connivance or involvement of the petitioner in felling or removal of any valuable trees nor there is any statement as regards his unauthorized absence. Further reference to the personal file of the petitioner to establish the charge of unauthorized absence also would not be of much help as firstly, the petitioner was not allowed to examine the said personal file and make his submission on the same in course of the enquiry and secondly, when the show cause notice is read, the third charge against the petitioner is not unauthorized absence simplicitar. In fact, the third charge is that by remaining unauthorizedly remaining absent, the petitioner had helped certain miscreants in carrying out illegal felling of trees and removing the same from the forest area. Apparently, the said aspect is not reflected in the personal file of the petitioner, which was presented.

The further contention that the procedure prescribed in Rule-9(6) of the Assam Services (Discipline and Appeal) Rules, 1964 was also not followed, can also be examined from the contents of the enquiry report dated 29.04.2009. The enquiry report merely refers to the statements of the aforesaid three witnesses of the department and nothing has been stated that the three witnesses were allowed to be examined by the petitioner. Further, a perusal of the statement itself also indicates that the petitioner had not cross examined the said witnesses.

In the absence of any authentic material to indicate that the petitioner had declined to cross examine the witnesses, there is nothing to preclude the Court from presuming that the petitioner was not allowed to cross examine the witnesses. In such view of the matter also, a finding can be arrived at that the procedure prescribed in Rule-9(6) of the Assam Services (Discipline and Appeal) Rules, 1964 was not duly followed in the present case.

In view of the aforesaid conclusion, this Court is of the view that the order of punishment dated 08.05.2009 is not sustainable in law. Accordingly, the said order dated 08.05.2009 inflicting a punishment of withholding two increments without cumulative effect on the petitioner is hereby set aside. In terms of the above, the writ petition stands disposed of.