High Court · 2009

The petitioner is aggrieved by the order of dismissal from service, whic

2. The petitioner while was serving as Sub-Divisional Housing Officer under the respondents was placed under suspension by office order dated 11.8.2000. Th ereafter, the Annexure-C charge sheet dated 5.1.2001 was issued to him leveling two charges, which were reproduced below: (cid:28)1. That while you are working as Sub-Divisional Housing Officer, Assam State Ho using Board, Guwahati-5 as per report of enquiry committee, you have given posse ssion of Boards land to you own people such as Sri Tapan Kalita. Even you were p hysically present during the time of erecting of house and also you were invited Sri L. Rabha, Chowkidar during house entering ceremony. Which is nothing but gr oss indiscipline and violation of Service conduct Rules. Therefore, you are hereby charged with gross indiscipline and violation of Servi ce conduct Rules. That while you were working as Sub-Divisional Housing Officer, Assam State Housi ng Board, Guwahati your primary duty was to protect the interest of the Board. B ut you have indulged in encouring the encroachers to encroach Board’s land at Bo rsajai. Further you have encroached yourself a plot of Board’s land at Borsajai measuring about 1 (one) Bigha through one Smti Arati Bora of Jagiroad and constr ucted C.I. Sheet roofing house and engaged one Shri Tapan Kalita of Borpeta as c aretaker of your house at Borsajai. Beside, you in callusing with one Sri Paban Bora, the Ex-land revenue collector of Beltola Mouzadar have given possession of Board’s land after measurement to o thers on consideration of money. This was stated by Shri Amarendra Daimari and L akhan Rabha both Chowkidar (now U/S) posted at Borsajai to guard the Board’s lan d. The lat Mandal of the Board Shri (now U/S) Shri Pratap Sarmah and S.K. of the Board Shri Keshab Battacharjee (now U/S) also reported that you have encroached Board’s land and constructed C.I. Sheet roofing house and created tenancy. More over at you behest Srimoti Arati Bora an encroacher had file writ petition befor e the Hon’ble Guwahati High Court against the Board on the strength of false reg istered deed and Jamabandi managed by you. Thus you have caused wrongful loss to the Assam State Housing Board and making wrongful gain to yourself. Therefore, you are charged with gross misconduct and violation of Service conduc t Rules. (cid:29) In response to the aforesaid charges, the petitioner by representation 3. dated 16.1.2001 while requested the disciplinary authority to drop the charges c ontended that the charge sheet being not accompanied with the list of documents and witnesses and that both the charges being vague and indefinite, the charges were not maintainable in law. As regards the allegation of encroachment of the l and belonging to the respondents, it was the stand of the petitioner that the al legation that he had occupied the land through his wife Smti. Arati Bora was not correct inasmuch as at the time of construction of the house by Smti Arati Bora , the petitioner had no relationship with her and their marriage took place much thereafter.

4. Taking the aforesaid representation dated 16.1.2001 to be the written st atement of defence of the petitioner and without answering the plea raised by th e petitioner that the chargesheet was not maintainable the charges being vague a nd indefinite and the charges having been not accompanied with the list of docum ents and witnesses, the disciplinary authority by its order dated 28.2.2001 appo inted an Enquiry Officer to conduct the enquiry against the petitioner in respec t of the charges. By the said order, Presenting Officer was also appointed.

5. The appointed Enquiry Officer conducted the enquiry and by his report da ted 28.1.2002 opined that since a civil dispute was pending in the Civil Court, it would not be appropriate to conclude the enquiry and made recommendation to k eep the proceeding in abeyance till disposal of the proceeding before the Civil Court. After the aforesaid report so furnished by the Enquiry Officer, the depar tmental authority issued the Annexure-F order dated 22.7.2002 appointing another Enquiry Officer to proceed with the enquiry denovo. By the said order another P resenting Officer was also appointed.

6. The new Enquiry Officer conducted the enquiry afresh and submitted his r eport on 10.8.2004. The enquiry report was forwarded to the petitioner by letter dated 19.3.2005 asking him to make representation if any against the proposal t o remove him from service. In response to the said letter, the petitioner by his representation dated 5.4.2005 objected to the proposal in which he also highlig hted the procedural irregularity committed by the Enquiry Officer in conducting the enquiry. The petitioner also referred to the judgment and decree dated 22.3. 2005 passed by the Civil Judge (Sr. Division) No. 3, Kamrup, Guwahati in Title S uit No. 10/2001 filed by his wife against the respondent Board. It is this proce eding in reference to which the first Enquiry Officer opined to keep the departm ental proceeding against the petitioner in abeyance till disposal of the suit. T he suit was decreed in favour of the wife of the petitioner. The Enquiry Officer was of the opinion that on the same very subject matter, a departmental proceed ing against the petitioner cannot proceed simultaneously. Mr. R.P. Sarmah, learned Sr. Counsel appearing for the petitioner submit 7. s that there being procedural irregularity in conducting the enquiry from the ve ry inception of the proceeding, same is liable to be interfered with. He submits that as per the mandatory requirement of Rule 9 of the Assam Services (Discipli ne & Appeal) Rules, 1964 a list of documents and witnesses ought to have been fu rnished to the petitioner alongwith the charge sheet. Admittedly no such list of documents and witnesses were furnished to the petitioner along with the charges heet. He further submits that the witnesses having been examined behind the back of the petitioner and the right of cross examination having been denied, statem ent of such witnesses could not have been relied upon and consequently the impug ned order of dismissal from service is liable to be interfered with.

8. Countering the above argument, Mr. C. Goswami, learned counsel represent ing the respondent Board submits that that the enquiry was conducted in due comp liance of the principles of natural justice and the petitioner was afforded all the reasonable opportunity of being heard. Referring to the records produced by him, he submits that although at the initial stage, the petitioner was not provi ded with the list of documents and witnesses, but at the later stage he was prov ided with the same. In this connection the letter dated 24.5.2001 (Sl. No. 74 in the record) has been referred to. By the said letter the petitioner was furnish ed with the report of the Enquiry Committee, which conducted the preliminary enq uiry. The letter also indicated 4 names as the witnesses.

9. I have considered the rival submissions made by the learned counsel for the parties and the materials on record including the record produced by Mr. Gos wami, learned counsel representing the respondent Board.

10. The enquiry report dated 10.8.2004 makes mention of the documents which were made available to the Enquiry Officer, which includes amongst others the af oresaid preliminary enquiry report, which was later on furnished to the petition er. However, from the report it appears that the Enquiry Officer was also furnis hed with some more documents as indicated in the enquiry report, copies of which were never furnished to the petitioner.

11. The report further reveals that the Enquiry Officer examined some witnes ses including the witnesses mentioned in the aforesaid letter dated 24.5.2001 wi thout however, affording any opportunity to the petitioner to cross examine them . The procedure adopted by the Enquiry Officer as is revealed from the fil 12. e produced by Mr. Goswami is that he had examined many witnesses of the discipli nary authority but they were not allowed to be cross examined by the petitioner. The statements of the witnesses do not bear the signatures of the petitioner. I t is in this context, Mr. R.P. Sarma, learned Sr. Counsel for the petitioner sub mits that since the witnesses were examined at will by the Enquiry Officer, the petitioner did not get any opportunity to cross examine them.

13. The rules of natural justice are inbuilt in departmental proceeding. Rul e 9 of the Assam Services (Discipline and Appeal) Rules, 1964 envisages detail p rocedure towards conducting a departmental enquiry. The delinquent officer is to be given adequate opportunity to defend his case, which includes engagement of defence counsel, right to cross examination of witnesses and to adduce his own e vidence including documentary evidence. However, in the instant case, apart from the fact that the petitioner was not supplied with the list of documents at the time of furnishing charge sheets, he was also not given opportunity to cross ex amine the witnesses, examined on behalf of the disciplinary authority.

14. In the representation dated 16.1.2001, which the petitioner had submitte d pursuant to the charge sheet dated 5.1.2001, he having highlighted about the v agueness and indefiniteness of the charges and also non-disclosure of the list o f documents and witnesses, by which the charges were sought to be established, i t was the incumbent on the part of the departmental authority to deal with the s aid plea, but instead the authority taking the same to be the written statement proceeded with the proceeding with the procedural violation as indicated above.

15. The enquiry report itself reveals that the Enquiry Officer relied upon m any documents, copies of which were not furnished to the petitioner. He also exa mined the witnesses without affording the right of cross examination to the peti tioner. Such infirmities in conducting a departmental enquiry are serious and na turally caused prejudice to the defence of the petitioner. That being the positi on, the impugned order of dismissal from service dated 1.12.2005 cannot be susta ined and is interfered with by setting aside and quashing the same. Consequently , the petitioner shall be deemed to be in service all throughout and he shall be reinstated in service forthwith.

16. Mr. Goswami, learned counsel, representing the respondent Board submits that the financial condition of the respondent Board is not sound and that the B oard is functioning under tremendous financial hardship. Coupled with this, in v iew of the fact that the impugned order has been interfered with only on technic al ground and not on merit, I am of the considered opinion that the petitioner m ay not be paid back wages for the intervening period. However, he will be entitl ed to notional fixation of pay for the period in question.

16. , any order as to costs. Writ petition is allowed to the extent indicated above, without, however