SRI PRASANNA KUMAR PHUKAN vs THE STATE OF ASSAM

1.Heard Mr. D. Baruah, the learned counsel appearing for the petitioner. The respondents are represented by Mr. D. Nath, the learned Addl. Sr.

Govt. Advocate, Assam.

The matter pertains to a Disciplinary Proceeding, drawn up on the allegations pertaining to the petitioner’s service as the Accountant of the

Margherita Sub-Treasury. The proceeding under the Assam Services (Discipline & Appeal) Rules, 1994 (hereinafter referred to as ‘the Discipline

Rules’) was drawn up with the show cause notice dated 18.6.2002 (Annexure-B), issued by the DC, Tinsukia and although there were eight

statement of allegations, in this proceeding, the Court is concerned with the allegation Nos.4 & 6, which are extracted for ready reference:-

“…………………….

That you passed the salary bill of the said High School for the month of November/2000 (under Non-Plan) wherein no deductions of GPF

contribution of the staff were shown although the State Govt. has made compulsory G.P.F. contribution to be deducted @6.25% of the basis pay of

the staff which proves your willful negligence.

…………………..

That two bills, each for Rs.3305/- and Rs.30458/- were presented to the Treasury on 12.01.2001 and issued token No.297 and 38 respectively. On

receipt of complaint from the Head Master of the School to stop payment against these two fictitious bills, above tokens were returned by you to the

token issuing Asstt., but denied to have received the bills which were untraceable in the Treasury Office. This gives rise to suspicion about your

involvement in all fraudulent drawls of money by the said School. You are, therefore, charged with breach of trust.â€​

The reply and the additional reply filed by the delinquent were found to be unsatisfactory and accordingly Enquiry into the charges were ordered.

On consideration of the materials produced by the Presenting Officer and the delinquent, the Inquiry Officer concluded that all the charges have been

proved. After due consideration of the enquiry finding and the gravity of the charge relating to dereliction of duty resulting in irregular and inexplicable

drawl of public fund, the disciplinary authority ordered for demotion of the Accountant to the cadre of Jr. Accountant Assistant, under the order dated

19.2.2004 (Annexure-G).

Aggrieved by the demotion order, the delinquent filed the WP(C) No.1744/2004 but the learned Single Judge found that disciplinary action was

legally taken. Since reasonable justification was found for the impugned action, the Writ Petition came to be dismissed by the judgment dated

22.8.2005 (Annexure-H).

The reversal before the Single Judge resulted in the delinquent’s Writ Appeal No.630/2005 and the learned Division Bench, in the judgment

dated 24.3.2010 (Annexure-I), noted that the disciplinary authority failed to apply his mind to Charge Nos.4 & 6, in accordance with the requirement

of Rule 9(9) of the Discipline Rules. According to the Court, the authority should have recorded independent finding on each charge and such findings

should have been based on the relevant records. On this basis, the matter was remitted back to the disciplinary authority for fresh consideration of the

materials and to record appropriate finding. With this verdict, the Writ Appeal No.630/2005 was partially allowed by the Division Bench on 24.3.2010

(Annexure-I).

Following the Court’s above direction, the DC, Tinsukia as the disciplinary authority, re-considered all the charges and recorded his finding on

each charge with reference to the materials on record, in the impugned order dated 13.5.2010.

The DC, Tinsukia in the impugned order has dealt with the two charges relevant for this case, in the following manner:

“CHARGE NO.4

The charge against the delinquent officer was “That you passed the salary bill of the said High School for the month of November/2000 (under

Non-Plan) wherein no deductions of G.P.F. contribution of the staff were shown although the State Govt. has made compulsory G.P.F. contribution to

be deducted @6.25% of the basis pay of the staff which proves your willful negligence in duty. That Shri P.K. Phukan, the delinquent officer has

made a poor defense against the charge by stating that, there was no G.P.F. Account No. mentioned on the bill of the incumbent and therefore, he

passed the bill accordingly.

As Accountant he should have put objection on the bill if GPF No. was not mentioned and he should have insisted for the same. There is clear

instructions from State Govt. that deduction of G.P.F. @6.25% on basis pay is compulsory. But Shri P.K. Phukan neglected and overlooked such

instructions and passed the bill. Hence, the Charge No.4 for willful negligence of duty is also proved.

CHARGE NO.6

The charge against the delinquent officer was “That, two bills each for Rs.3,305/- and Rs.30458/- were presented to the Treasury on 12-01-2001

and issued token No.297 and 38 respectively. On receipt of complaint from the Head Master of the School to stop payment against these two fictitious

bills, above tokens were returned by you to the Token Issuing Assistant, but denied to have received the bills which were untraceable in the Treasury

Office. This gives rise to suspicion about your involvement in all fraudulent drawls of the money by the said school. You are therefore, charged with

breach of trust.â€​

Against the charge No.6 mentioned above, the delinquent officer Shri P.K. Phukan categorically denied in his additional show cause reply

dtd.9.02.2004 that neither he had knowledge about the aforesaid two bills nor the token so issued by the token Asstt. to the person concerned. Further

he has denied that the aforesaid allegation so brought against him vide charge No.6 are baseless and has been made as to damage his service carrier.

Token issuing Asstt. Smti Kalpana Devi in her statement made before the preliminary enquiry officer Sri A. Goel, then ADC on 20.7.2001 as well

before the enquiry officer Sri F. Alam, EAC on 5.2.04 has admitted that she received the aforesaid two tokens from Shri P.K. Phukan, then

Accountant of the Sub-Treasury Margherita on 19.1.2001. Even Shri P.K. Phukan in his statement made before enquiry officer Sri A. Goel, ADC on

21.8.2001 said that he had accepted two tokens from the father of Sri Z. Zamal, office Asstt. of G.V.M.H. School Margherita on 19.1.2001. Thus the

defence of Shri P.K. Phukan that he had no knowledge of issuing two tokens is not correct. That Shri P.K. Phukan was also provided with an

opportunity to cross examine the aforesaid dealing Asstt. He failed to bring any contradiction in the statement of the dealing Asstt. Actually all bills

received in the Treasury are placed before the Accountant. In this case it is clear from the statement of Smti Kalpana Devi, the dealing Asstt. and

from the statement of the delinquent officer about receipt of tokens back from Sri Z. Zamal, that the delinquent officer had full knowledge about the

bills and he deliberately concealed the facts. Even after coming to know that the bills were untraceable he did not inform the Treasury Officer and did

not lodge FIR with the permission of the Treasury Officer immediately. This shows the involvement of the officer in fraudulent drawl of money and

the charge of breach of trust against the delinquent officer is provedâ€​.

8.1. The learned counsel, Mr. D. Baruah contends that the DC, Tinsukia misdirected himself and should have seen that the passing of the concerned

salary bill without deduction of the G.P.F. contribution relating to Charge No.4, did not result in any material gain for the delinquent.

8.2. For the Charge No.6, relating to breach of trust on the loss of the two fictitious salary bills against the Token Nos.297 and 38 respectively, Mr.

Baruah submits that the materials considered by the disciplinary authority were insufficient, to reach specific conclusion, on this charge.

On the other hand, Mr. D. Nath, the learned Addl. Senior Govt. Advocate submits that the arguments advanced by the petitioner’s counsel has

no bearing with the pleadings in the writ petition. That apart, the respondents contend that negligence of duty and breach of trust need not relate to

personal gain of the delinquent.

In so far as the Charge No.4 is concerned, it relates to the failure of the delinquent to prevent clearance of the salary bill without the G.P.F.

account numbers. The disciplinary authority noted that there is standing instruction of the Government for compulsory deduction of the G.P.F. dues

@6.25% on basic pay. The failure of the Treasury Officer to make such deduction, either through negligence or oversight, was found to be proved.

Therefore, it cannot be said that the disciplinary authority had failed to apply his mind or had recorded any erroneous finding, on Charge No.4.

On the argument relating to Charge No.6, the disciplinary authority clearly considered the statement of the Token Issuing staff Smti. Kalpana

Devi. The DC found that Token Nos.297 and 38 were received by the delinquent from the father of the office Assistant of the Gandhi Vidyamandir

High School, Margherita. The failure of the delinquent to show any contradiction in the testimony of the Token Issuing Assistant, through his cross-

examination, was also noted by the disciplinary authority. The knowledge of the delinquent about the two bills and his failure to take any action, when

the bills become untraceable were found to be sufficient by the DC, to draw final conclusion on the Charge No.6.

The discussion of the supporting materials for the Charge Nos.4 & 6, as found in the impugned order of 30.5.2010 (Annexure-J), indicates that

conclusions were drawn with reference to relevant materials and there is no failure of the disciplinary authority to record his finding on each charge.

Therefore, adequate compliance with the requirement of Rule 9(9) of the Discipline Rules as also the direction given by the Division Bench in the Writ

Appeal No.630/2005, is noticed in the instant case.

That apart, the Court must also bear in mind that earlier, the matter was remanded back on 24.3.2010, to the disciplinary authority to record his

finding on each of the charges, as is mandated by the Discipline Rules. Therefore, the scope of the Court’s scrutiny will have to be confined to the

manner in which the evidence on the Charge Nos.4 & 6 were assessed on remand, by the disciplinary authority.

Upon due consideration of the materials on which conclusions have been drawn for the Charge Nos.4 & 6 by the disciplinary authority, under the

impugned order of 13.5.2010 (Annexure-J), I find adequate compliance of the requirement of Rule 9(9) of the Discipline Rules as also the direction

given in the Writ Appeal No.630/2005. Therefore, no infirmity is seen with the impugned decision dated 13.5.2010 of the DC, Tinsukia. With this

conclusion, the case is found devoid of merit and the same is accordingly dismissed. No cost.