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Judgment
1Heard Mrs. J.M. Konwar, learned counsel for the petitioner and also heard Mr. M.R.Adhikari, learned Government Advocate who appears on
behalf of all the State respondents.
This is a petition under Article 226 of the Constitution of India challenging the dismissal order dated 20.09.2013 (at Annexure-18 of the writ petition)
by which the petitioner’s late husband who was an employee as Peon in the department of Panchayat & Rural Development was dismissed from
service, and, at the same time praying for a direction to the respondents to treat the petitioner’s husband in service till he died on 20.03.2014 and
grant her family pension and other pensionary benefits as admissible under the rules, and also to issue a direction to the respondents to appoint her in a
Grade-IV post of the Department on compassionate ground.
The petitioner’s husband was appointed as Peon under the Directorate of Panchayat & Rural Development, Assam as causal employee in the
month of February, 1991 and his service was regularized on 01.03.1994. While serving, as such, he was found absent from 25.11.2011 to 04.04.2013.
After a show cause notice was issued through newspaper publication on 04.04.2013 he appeared on 05.04.2013, and he was allowed to join his work.
Thereafter, he was issued another show cause notice on 07.05.2013 and the same was replied by him on 17.05.2013 stating that due to his illness from
chronic liver disease with Ulcer syndrome he was under treatment, therefore, he could not attend office during the period mentioned above. He also
informed that he was in touch with the office through telephone now and then about his health condition and his absence from the office was not
intentional or willful. The explanation was not accepted by the department hence, vide order dated 20.09.2013, issued by the Commissioner, Panchayat
& Rural Development, Assam, the petitioner’s husband was dismissed from service. The dismissal order as annexed to the writ petition at
Annexure-18 is reproduced here below;
“GOVERNMENT OF ASSAM
OFFICE OF THE COMMISSIONER PANCHAYAT & RURAL DEVELOPMENT PANJABARI ROAD :: JURIPAR :: GUWAHATI-37
No. DRD-2(D)209/95/343
Dated the 20th Sept./2013
ORDER
Perused the Show Cause Notice dated 07-05-2013 served upon Sri. Biswajit Sarma, Peon of this Commissionerate and also perused the replies dated
17-05-2013 submitted by Sri. Biswajit Sarma, Peon. Whereas the Enquiry Officer has submitted the Enquiry report dated 06-08-2013 in which it was
found that the charged leveled against the charged official has been proved and, Whereas, after going through the charges and report of the Enquiry
Officer, the Disciplinary Authority is satisfied with the Enquiry Report and has accepted the finding of the same.
ORDER
Having gone through the Enquiry Report and all relevant documents connected with the instant case and considering the facts and circumstances and
seriousness of the charges, I as the Disciplinary Authority is satisfied that this is a fit case, where major penalty not less than that his dismissal from
Govt. services with meet the end of justice. Hence Sr. Biswajit Sarma, Peon of this Commissionerate is hereby dismissed from Govt. service under
Rule-7(vii) of Assam Services (Discipline and Appeals) Rules, 1964 with immediate effect.
Sd/-
(Dr. K.K. Dwivedi, IAS)
Commissioner, Panchayat & Rural Dev., Assam.â€
On 20.03.2014, the petitioner’ husband died living behind his wife that is the petitioner and two minor children. After the death of her husband
the petitioner submitted a representation dated 03.04.2014 to the Principal Secretary to the Government of Assam-in-Charge of Panchayat & Rural
Development department praying for revocation of the dismissal order so that she and her minor children may enjoy the pensionary benefits. Since the
representation did not yield any favourable response, the petitioner has approached this Court praying as stated above.
The learned counsel of the petitioner at the very outset submitted that though her husband has died being the only wife and affected directly by the
dismissal of her husband from service the petitioner has legal right to claim such reliefs as prayed for in the petition. In support of her submission, the
learned counsel cited the judgment of the Hon’ble Supreme Court dated 03.10.2001, particularly para-38 of the judgment passed in the case of
Ghulam Qadir â€"Vrs- Special Tribunal & Others, reported in (2002) 1 SCC 33. The contents of the para-38 of the judgment are reproduced here
below;
“38. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an
aggrieved person except in the case where the writ prayed for is habeas corpus or quo warranto. Another exception in the general rule is the filing of
a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking
the jurisdiction of the High Court under the aforesaid Article. The orthodox rule of interpretation regarding the locus standi of a person to reach the
court has undergone a sea change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal
approach in dealing with the cases or dislodging the claim of a litigant merely on hypertechnical grounds. If a person approaching the court can satisfy
that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such
a person cannot be rejected on the ground of his not having the locus standi. In other words, if the person is found to be not merely a stranger having
no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standiâ€.
Mr. M.R. Adhikari, learned Government Advocate contended that since the delinquent Government servant had already died, the petitioner would not
have a locus standi to approach this Court for the reliefs claim. On this, Mr. Adhikari submitted that he would be submitting a ruling of the Hon’ble
Supreme Court but did not do so. The fact that the petitioner is wife of the deceased delinquent Government servant his dismissal from service
naturally affects her right to family pension and other benefits provided under the relevant Acts and Rules which are statutory. Therefore, in view of
the principle of law settled by the Hon’ble Supreme Court in the case cited the objection raised by the learned Government Advocate seems to
have lost its sting.
It is also submitted by the learned counsel of the petitioner that petitioner’s husband was not given proper opportunity of being heard in the
departmental proceeding, therefore, the enquiry proceeding was conducted in violation of Article 311 of the Constitution of India and, as such, the
same deserves to be quashed and set aside, and, the subsequent actions taken by the concerned authority in dismissing the delinquent Government
servant that is the petitioner’s husband, vide order dated 20.09.2013, is also illegal and violative of the fundamental rights of the delinquent
Government servant, therefore, the same also deserves to be quashed and set aside. Furthermore, the learned counsel submitted that husband of the
petitioner was not given copy of the enquiry report, and, contended very strongly that in a disciplinary enquiry proceeding, if the delinquent
Government servant is not provided with a copy of the enquiry report it would be deemed that he or she has not been given opportunity of being heard
and, therefore, there has been violation of principle of natural justice. In support of her submission, the learned counsel cited the contents of
paragraphs-21 & 22 of the judgment of this High Court passed on 16.03.2017, in the case of Foyez Uddin Ahmed Laskar â€"versus-Gauhati High
Court and Others, reported in (2017) 3 GLT 262. In the said judgment, this Court by relying on the principle of law laid down by the Hon’ble
Supreme Court in the case of Union of India â€"versus- Md. Ramzan Khan, reported in (1991) 1 SCC 588, and in the case of Managing Director,
ECIL â€"versus- B.Karunakar, reported in (1993) 4 SCC 727, and the judgment of this High Court itself passed in the case of Utpal Rajkonwar â€
versus- Dibrugarh University, reported in (2015) 2 GLR 765, came to the conclusion that non supply or furnishing of a copy of enquiry report to the
delinquent Government servant in a disciplinary enquiry amounts to denial of fair opportunity of being heard. The relevant paragraphs-21 & 22 of the
judgment cited by the learned counsel are reproduced here below;
“21. Article 311, particularly, the first provisio thereto, which was incorporated post 42nd Amendment was the subject
matter of deliberation by the Supreme Court in Union of India â€"versus- Md. Ramzan Khan, (1991) 1 SCC 588. Thereafter, a Constitution Bench of
the Supreme Court deliberated upon this provision in the case of Managing Director, ECIL â€"versus- B.Karunakar, (1993) 4 SCC 727. Supreme
Court has explained that before arriving at a finding holding the delinquent quilty or otherwise, copy of the enquiry report has to be furnished to the
delinquent and response of the delinquent on the enquiry report is required to be considered. However, once he is held guilty thereafter, no fresh notice
is required to be issued to the delinquent on the question of imposition of penalty. This aspect of the matter was gone into by this Court in a recent
decision in the case of Utpal Rajkonwar v. Dibrugarh University, (2015) 2 GLR 765, relevant portion of which is extracted hereunder with approval;
“20. Before adverting to other grounds of challenge, it would be opposite to first attend to the challenge made on the ground of non-furnishing of
copy of the enquiry report to the petitioners before acceptance of the findings of the Enquiry Committee as any decision on this ground, one way or
the other, would have a decisive bearing on the outcome of the present proceeding.
Article 311 of the Constitution deals with dismissal, removal or reduction or reduced in rank or persons employed in civil capacities under the
Union or the State. Prior to the 42nd Amendment of the Constitution, Sub- article (2) of Article 311 reads as under: “311(2) No such person as
aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and
given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such
penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence
adduced during such inquiry.â€
Following the 42nd Amendment made in the year 1976, sub-article (2) now reads as under;
“311. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of
the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where it is proposed, after such
inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be
necessary to give such person any opportunity of making representation on the penalty proposed:â€
Prior to the 1976 Amendment, Article 311(2) provided for opportunity of hearing at 2 stages, i.e. at the stage of enquiry into the charges and
consequently before imposition of penalty on the basis of findings of the enquiry. The 1976 Amendment eliminated the provision providing for second
opportunity of hearing of punishment.
In Ramzan Khan (supra), the question, which fell for consideration before the Apex Court was whether after the 42nd Amendment, the delinquent
had lost his right to entitlement to a copy of the report of the Enquiry Officer in the disciplinary proceeding. The Apex Court, on due consideration took
the view that deletion of the second part of issuing notice did not bring about any material change in regard to the requirement of furnishing a copy of
the enquiry report to the delinquent. The Hon’ble Supreme Court held as under;
“15. Deletion of the second opportunity from the scheme of article 311(2) of the constitution has nothing to do with providing of a copy of the
report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by
amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are
established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of
the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding
completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of
natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the
proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forty-
second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter
of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a
copy thereof. The Forty-second Amendment has not brought about any change in this positionâ€.
The question as to whether the enquiry report of the Enquiry Officer, who was appointed by the Disciplinary Authority to hold enquiry into the
charges against the delinquent, was required to be furnished to the delinquent to enable him to make proper representation to the Disciplinary
Authority before such authority arrives at its own final decision with regard to the guilt or otherwise of the delinquent and the consequent punishment
proposed was referred to the Constitution Bench in Managing Director, ECIL (supra). Reference was made in the view of what was thought to be
conflicting decisions in Ramzan Khan(supra) and an earlier decision in the case of Kailash Chander Asthana v. State of U.P., (1988) 3 SCC 600. The
question, which was referred has since been authoritatively decided by the Constitution Bench in Managing Director, ECIL(supra). It has been held
that right to receive the Enquiry Officer’s report and to show cause against the enquiry report was independent of the right to show cause against
the penalty proposed. Acknowledging that there was some between the two rights, the Apex Court clarified that the right to receive the enquiry report
and to represent against the findings recorded in it was inexplicably connected with the decision of the Disciplinary Authority and the nature of penalty
proposed. Since the 42nd Amendment dispensed with the requirement of issuance of the notice to show cause against the penalty proposed, the Apex
Court observed that some Courts took the view that the delinquent was deprived of his right to represent against the findings of guilt as well. The
confusion was on account of the failure to distinguish the two rights which were independent of each other. The Apex Court explained the distinction
between the two stages and held as under;
“25.While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry
viz., before the disciplinary authority takes into consideration the findings in the report. the right to show cause against the penalty proposed belongs to
the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the
employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for
either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which
was taken away by the 42nd Amendment.
The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage
and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority
which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said
findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The
findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a
finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should
have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair
opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to
reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry,
it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on
record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to
influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not
constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry
officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same
or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary, authority
while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before
the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings.
The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.
It will, thus, be seen that where the Inquiry Officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The
first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, Inquiry Officer's report and the delinquent
employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the
disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is
thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the
right to defend himself and to prove his innocence in the disciplinary proceedings.
Therefore, from a careful reading of the aforesaid decision of the Apex Court, it is clearly evident that before the Disciplinary Authority comes to
its own conclusion whether to accept the enquiry report or not, the delinquent employee should have an opportunity to reply to the Enquiry
Officer’s findings. Thereafter, the Disciplinary Authority is required to consider the evidence on record, the report of the Enquiry Officer and the
representation of the employee against the report of the Enquiry Officer.â€
In other words, the requirement of law is that before a decision is taken by the disciplinary authority whether the enquiry report has to be accepted
or not, the delinquent has to be given a chance to make a representation against the report submitted by the Enquiry Officer. After all, report of the
Enquiry Officer is one of the material documents to be taken into consideration by the disciplinary authority before accepting the guilt or otherwise of
the delinquent. Therefore, as explained in Utpal Rajkonwar (supra), principle of natural justice require that before such decision is taken the delinquent
is required to be afforded an opportunity to make his statement by way of representation on such report. Thereafter, it is for the disciplinary authority
on the basis of the materials on record, including the enquiry report and the response of the delinquent, to take a decision as to whether the delinquent
is guilty or not. Once the disciplinary authority holds the delinquent to be guilty of misconduct and decides to impose penalty, no fresh show cause
notice is required to be given to the delinquent on the point of penalty.†Mr. Adhikari, learned Government Advocate appearing for the respondents
produced the records of the enquiry conducted against the deceased husband of the petitioner. On perusal of the records there is no sign which would
show that a copy of the enquiry report was given to the deceased husband of the petitioner. The learned Government Advocate however, submitted
that this plea submitted by the petitioner’s learned counsel is not a part of the pleading, therefore, it cannot be taken into consideration. The
learned counsel for the petitioner drew my attention to para-19 of the writ petition and submitted that it can be implied from the contents of this
paragraph that the ground taken has been one of the pleaded case of the petitioner. The contents of the para-19 of the writ petition referred to by the
learned counsel for the petitioner are reproduced here below;
“19. That the petitioner begs to submit that the very fact that the petitioner’s husband expired soon after his dismissal from service speaks for
itself that his health condition had already highly deteriorated and therefore he was not in a position to defend himself effectively in the departmental
proceeding; and for the same reason he was not even in a position to prefer a departmental appeal against his dismissal from service.â€
The submission of the learned counsel, Mr. Adhikari that this ground is not a pleaded case of the petitioner, therefore, to accpet the same would be
going outside the purview of the pleading of the petitioner cannot be accepted, because this Court can take judicial notice of the same specially when
the records have been placed. Further, in the absence of any evidence in the records to show that a copy of the report of the enquiry was given to the
petitioner’s husband before the conclusion on his guilt was drawn by the authority, the departmental proceeding drawn up against the deceased
Government servant has to be deemed vitiated in the light of the principle of law laid down by the Hon’ble Supreme Court and followed by this
High Court. Therefore, the enquiry proceeding and the consequential actions taken thereafter can be quashed and set aside on this ground alone.
The third point raised by the learned counsel of the petitioner is that for every absence from duty a delinquent Government servant is not punishable
unless such absence is proven to be willful. The learned counsel on this cited the judgment of the Hon’ble Supreme Court passed on 15.02.2012 in
the case of Krushnakant B.Parmar â€"versus- Union of India and Another, reported in (2012) 3 SCC 176. The relevant paragraphs cited by the
learned counsel are paras-16 to 22 and the contents are reproduced here below;
“16. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government
servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances.
If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to
be willful.
Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. There
may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness,
accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a
Government servant.
In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the
absence is willful, in absence of such finding, the absence will not amount to misconduct.
In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to
hold the absence is willful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant
guiltyâ€. Though, I agree with the proposition of law submitted by the learned counsel, I am not inclined to go into the issue any further as the same
involves questions of fact.
Mr. Adhikari, learned Government Advocate also submitted that the delinquent Government servant, during his lifetime did not prefer the statutory
appeal, therefore, the petitioner has no locus standi to file this writ petition. To this, the learned counsel for the petitioner submitted that the delinquent
Government servant, due to his poor health, was not in a position to file the appeal. In support of her submission, the learned counsel referred to the
medical certificate on the health of the delinquent Government servant which is annexed to the writ petition as Annexure-11. The fact that the
delinquent Government servant was physically sick when the enquiry proceedings were going on and thereafter died is well supported by the facts and
circumstances submitted by the learned counsel of the petitioner and the documents filed along with the writ petition like the medical certificate, which
are not refuted. Therefore, the explanation given for not preferring the statutory appeal is accepted.
In view of the above discussions and the conclusions drawn, I am of the view that the petitioner’s case is well supported. Therefore, the writ
petition is allowed and the departmental proceedings which culminated in the passing of the impugned dismissal order dated 20.09.2013, is quashed and
set aside together with the impugned order. Further, as in consequence, the respondents are directed to pay all the pensionary benefits including family
pension to the petitioner and her children as per law. The respondents shall also consider appointment of the petitioner to any Government job on
compassionate ground as per the scheme provided by law. Needless to say but since the petitioner and her children have been left behind by their only
bread earner for quite some time, the respondents should comple te the whole process within a period of 4(four) months from the date of receipt of a
copy of this judgment and order. Writ petition is disposed.