SHARMILA BAISHYA v. THE STATE OF ASSAM & Ors.

Bharadwaj, learned counsel for the petitioner. Also heard Mr. J.K. Goswami, learned Additional Senior Government Advocate, Assam, for all the respondents.

2. The petitioner was inducted into the Assam Civil Service (ACS) on

21.06.1999 and was posted at different places during her service career. While the petitioner was posted as Extra Assistant Commissioner, Kaliabor, the petitioner had to take earned leave with effect from 18.7.2011 to

31.10.2011, as her mother’s was treated at the Tata Memorial Hospital, Mumbai for cancer. The petitioner had to seek further extension of leave with effect from 1.11.2011 to 28.2.2014. The petitioner, therefore, made successive applications in the prescribed format to the Commissioner, North Assam Division for granting leave to her so as to take care of her ailing mother. As there was no response, the petitioner was under the impression that her leave was granted. While the petitioner was on leave, the Department of Personnel (A) Department, Government of Assam, issued a notification dated 25.2.2014 whereby the petitioner was transferred from Kaliabor to Biswanath, as Extra Assistant Commissioner, along with other ACS Officers. In the said notification, the petitioner is shown to be on leave.

3. By notification dated 24.3.2014, the petitioner was placed under suspension pending initiation of departmental proceedings. Thereafter, by Page No.# 3/9 communication dated 8.7.2014, issued by the Principal Secretary to the Government of Assam, Personnel (A) Department, the petitioner was served with a show cause notice on three(3) charges, principally on the ground that she had continued to be on unauthorized leave and that she had also violated the Election Commission of India’s notifications. Along with the show cause notice, the petitioner was also served with the statement of allegations and also the list of documents and witness. The transfer order dated 25.2.2014 and the W.T. Message dated 14.3.2014 were amongst the list of documents and the Deputy Secretary to the Government of Assam, Personnel (A) Department, was the sole witness in the list of witnesses. The petitioner made her written statement against the show cause notice on

8.9.2014. An Enquiry Officer as well as a Presenting Officer were appointed by the concerned authority. During the course of the disciplinary proceeding, the sole witness was examined. However, in his statement, the witness stated that he had no knowledge about the departmental proceeding against the petitioner, except that he had authored the transfer-posting notification in respect of the petitioner. The said statement was taken on 20.2.2014. Thereafter, the State Inquiry Officer, Assam, submitted the Enquiry Report dated 1.5.2015 to the Additional Secretary to the Government of Assam, Personnel (A) Department, by a communication dated 11th May, 2015. The petitioner was served with the copy of the Enquiry Report and against the enquiry report, the petitioner made her reply on 22.6.2015.

4. Thereafter, the disciplinary authority i.e. the Additional Chief Secretary to the Government of Assam, Personnel (A) Department passed an order dated 12.11.2015 imposing the penalty of stoppage of 3(three) annual increments with cumulative effect upon the petitioner. Further, the period of suspension of the petitioner was treated to be on duty for the purpose of Page No.# 4/9 pensionary benefits only and the remuneration during the suspension period was limited to the suspension allowance already paid to the petitioner.

5. Being aggrieved with the order dated 12.11.2015, the petitioner filed an appeal under Rule 15 of the Assam Services (Discipline and Appeal) Rules, 1964 before the Appellate Authority on 22.1.2016. The appeal filed by the petitioner was rejected by order dated 4.8.2016. Being aggrieved, the petitioner is before this Court.

6. Mr. M.K. Choudhury, learned senior counsel for the petitioner submits that the petitioner was on leave when the transfer notification dated

25.2.2014 was issued and, therefore, she could not join to her place of posting. Learned senior counsel submits that the initial leave application filed for the period from 18.7.2011 to 31.10.2011 was granted by the concerned authority. Thereafter, on expiry of the said leave period, the petitioner made several applications in the prescribed formal for grant of leave with effect from 1.11.2011 to 28.2.2014. The concerned authority did not intimate the petitioner whether the leave applied by her was granted or rejected. In the absence of any reply, the petitioner took it for granted that the leave was sanctioned by the sanctioning authority.

7. Learned senior counsel also submits that a perusal of the enquiry report dated 1.5.2015 clearly indicates that there was no application of mind on the part of the said Enquiry Officer inasmuch as no reason has been given for establishing the charges levelled against the petitioner. It is also submitted that no documents were exhibited and the sole witness of the prosecution also could not give any tangible statement against the petitioner/delinquent officer. The petitioner had also submitted all the medical documents regarding the treatment of her ailing mother before the Page No.# 5/9 disciplinary proceeding but no notice was taken of the same by the Enquiry Officer. Further the findings and observations of the Enquiry Officer were based only on documentary evidence which were never exhibited and therefore, he submits that the enquiry proceeded against the petitioner was only a sham.

8. Coming to the impugned order dated 12.11.2015, Mr. Choudhury, learned senior counsel submits that no reasons have been given by the disciplinary authority in imposing the penalty of stoppage of three(3) increment with cumulative effect upon the petitioner and the same has been done only by way of a routine manner. Learned senior counsel submits that the disciplinary authority has also failed to appreciate that Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964 (‘Rules of 1964’ in short) was not adhered to. The petitioner, therefore, being aggrieved filed an appeal before the appellate authority. However, the appellate authority without appreciating the facts narrated in the appeal petition merely passed an order rejecting the appeal filed by her. In that view of the matter, Mr. Choudhury, learned senior counsel submits that the enquiry report along with the impugned orders dated 12.11.2015 and 4.8.2016 should be set aside and quashed and the petitioner be given all consequential relief(s) as entitled under the law.

9. Mr. J.K. Goswami, learned Additional Senior Government Advocate, on the other hand, admits that the petitioner was on earned leave for 106 days with effect from 18.7.2011 to 31.10.2011. However, with regard to the subsequent periods from 1.11.2011 to 28.2.2014, the earned leave prayed for by the petitioner was not granted. He also submits that as the petitioner is a Class-I Officer serving the Government under various capacities, she Page No.# 6/9 should be aware of the fact that submission of application does not give her right to avail the leave unless the same is granted. As the petitioner did not join to her place of posting in terms of the notification dated 25.2.2014, which was issued in terms of the direction of the Election Commission of India, the petitioner was placed under suspension and a disciplinary proceeding was initiated against her. He also submits that the Enquiry Officer had conducted the disciplinary proceeding in a fair and transparent manner and, therefore, no interference is required with the orders dated 12.11.2015 and 4.8.2016.

10. I have considered the submissions made by the learned counsel for the parties. I have also perused the records produced before this Court by the learned Additional Senior Government Advocate, Assam.

11. A perusal of the records clearly indicates that no documents were exhibited and the evidence of the sole witness that was examined, indicates that the witness has no knowledge that a departmental proceeding was initiated against the petitioner and that he had only authored the transfer and posting order in respect of the petitioner. The records further indicates that the petitioner had submitted all the medical documents relating to the treatment of her mother before the departmental inquiry. A perusal of the inquiry report dated 1.5.2015 does not indicate that the Enquiry Officer had considered the medical documents submitted by the petitioner.

12. Rule 9 of the Rules of 1964 provides for the procedure for imposition of penalty upon a delinquent employee as specified in rule 7 of the same Rules. Rule 9(6) of the Rules provide that the Enquiry Authority shall in the course of the enquiry consider such documentary evidence and take such oral evidence as may be relevant or materials in regard to the charges. The Page No.# 7/9 Government servant shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in persons 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 enquiring authority declines to examine any witness or to admit any document in evidence or such document is not relevant or material, it shall record its reasons in writing.

13. In the absence of any document being exhibited and the sole witness having failed to give any substantial evidence, this Court is of the considered opinion that Rule 9 of the Rules of 1969 has not been complied with while the disciplinary proceeding was proceeded against the petitioner.

14. The impugned order dated 12.11.2015 by which the penalty of stoppage of three annual increments with cumulative effect was imposed and the period of suspension of the petitioner was treated as on duty for pensionary benefits only are not supported by any reason. Further, the order dated 4.8.2016 by which the appeal filed by the petitioner was also rejected, also does not contain any reason. As the orders passed by the disciplinary authority and the appellate authority has severe civil consequence, appropriate reasons should have been assigned in the said orders.

15. In the case of President, Nagar Panchayat Umari -Vs.- Shyam Charan Chaturvedi and Others, reported in 2021 SCC Online SC 995, the Hon’ble Supreme Court has held as under :- “9. A departmental proceeding against a delinquent is a serious matter as it has its repercussions which can be far reaching. It is Page No.# 8/9 trite law that the departmental proceedings are quasi-judicial proceedings. The enquiry officer functions in a quasi-judicial capacity. He has a neutral role to perform and cannot act as a representative of the management. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary. The question of any cross examination by the delinquent arises subsequent to the charges having been prima facie established in accordance with law. If the charges are not established in accordance with law, there is nothing for the delinquent to deny. Reference may be made to The Imperial Tobacco Company of India Ltd. v. Its Workmen, AIR 1962 SC 1348 at para 4.”

16. The enquiry report dated 1.5.2015 is based on merely ipse dixit as also on surmises and conjectures, the same cannot be sustained particularly when the inferences drawn by the Enquiry Officer were apparently not supported by any evidence, both documentary or oral.

17. Under the circumstances, the enquiry report dated 1.5.2015, the impugned order dated 12.11.2015 and the order dated 4.8.2016 rejecting the appeal made by the petitioner are set aside and quashed. The petitioner shall be entitled to all consequential relief(s), as entitled under the law. Let Page No.# 9/9 such consequential relief(s) be granted to the petitioner within a period of two weeks from the date of receipt of a copy of this order.

18. With the aforesaid observations and directions, the writ petition stands disposed of. No cost. JUDGE Comparing Assistant