Gauhati High Court · 2012

2. The petitioner presently serving as Upper Division Assistant (UDA) in th e establishment of the District & Sessions Judge, Dibrugarh, is aggrieved by Ann exure-I order dated 04.01.2010 passed by the Disciplinary Authority, i.e. the Di strict and Sessions Judge, Dibrugarh, imposing the penalty of reduction in rank. At the time of imposition of said penalty pursuant to a departmental proceeding , the petitioner was holding the post of Head Assistant and was placed under sus pension because of his involvement in a criminal case being Chabua P.S. Case No. 43/2007 under Section 121/121(A)/122/123 IPC read with Section 10/13 U.A.(P) Ac t and Section 4 and 5 of Explosive Act. It is submitted that the retirement of t he petitioner from service on attaining the age of superannuation is fast approa ching and he is going to retire in 2013.

3. Shortly stated the facts leading to filing of this writ petition are tha t the petitioner was arrested in connection with the aforesaid Chabua P.S. Case No. 43/2007 and because of such involvement in the criminal case, a decision was taken to proceed against him initiating a departmental proceeding and to that e ffect, Annexure-A was issued to him on 25.09.2007. On receipt of the said notice , the petitioner submitted his reply on 10.10.2007 contending that he was falsel y implicated in the criminal case.

4. After the aforesaid notice and reply thereto, a preliminary enquiry repo rt was submitted by the enquiring authority, namely Addl. District and Sessions Judge cum Enquiry Officer, Dibrugarh. The said report is dated 23.11.2007. In th e report it was opined that since a decision was to be taken in the criminal cas e, the allegation against the petitioner was only at the stage of allegation an d subject to establishing of the same in the criminal proceeding. After the aforesaid developments the petitioner was charge sheeted by An 5. nexure-D dated 24.01.2008 in respect of the two charges of anomalies in the matt er of supply of official articles and collection of rent in respect of the cante en within the court’s campus.

6. In response to the said charge sheet dated 24.01.2008, the petitioner su bmitted his written statement on 30.01.2008 denying the charges. However, when d ealing with the said reply, the Disciplinary Authority framed the following char ges against the petitioner and directed the Enquiry Officer to conduct the enqui ry in respect of the charges. In the process, the petitioner was not asked to su bmit his written statement any further. No. 1: That you were adding members of banned organisation of ULFA in releasing them of bail by engaging advocates and arranging bailors in cases of offence U/s. 10/13 of the U.A. (P) Act getting money from the banned organisation and thereby misu sed your office and committed gross misconduct. You were arrested by Police in C habua P.S. Case No. 43/07 U/s. 121/121(A)/122/123 IPC and Section 10/13 U.A.(P) Act from your involvement and advocating and aiding with the members of the bann ed organisation ULFA misused of your office and thereby you committed misconduct . No.2 You placing verbal order to M/s. A.B. Combines for supplying of articles, receiv ed the articles from the supplier and used the articles for your own purpose, mi susing your office without the order, the authority and thereby you committed gr oss illegality and misconduct. No. 3 During the period stating from 30.03.2004 till 19.03.2007 you collected rents fr om the canteen of an amounting to Rs. 58,578/- and did not deposit the same with the Pass Book violating the direction of the District and Sessions Judges, Dibr ugarh and temporarily misappropriated the amount for your personal use and there by you committed misconduct and misuse of your office. (cid:29) In due course the Enquiry Officer conducted the enquiry and held the pet 7. itioner guilty of Charge No. 1 and the second part of the Charge No. 2, namely misusing the articles supplied to the office. On being furnished with a copy of the enquiry report, the petitioner submitted his representation dated 25.02.2009 urging the Disciplinary Authority to take a different view of the matter other than the one taken by the Enquiry Officer in respect of Charge No. 1 and second part of the Charge No. 2. On the basis of the aforesaid enquiry report; representation submitted b 8. y the petitioner and the materials on record, the Disciplinary Authority passed the impugned order dated 04.01.2010 holding the petitioner guilty of the Charge No. 1 and the second part of the Charge No. 2 and imposed the penalty of reducti on to a lower grade/post, i.e. UDA. 9. Mr. P.J. Saikia, learned counsel for the petitioner submits that there c ould not have been a finding both in the enquiry report and in the impugned orde r passed by the Disciplinary Authority that even the charge No. 1 regarding his involvement in criminal case is established. He further submits that mere alleg ation against the petitioner in a criminal case cannot lead to an inference that he is guilty of the criminal offence. He submits that guilt or otherwise in a c riminal offence will have to be established by a competent court of law. He also submits that involvement of the petitioner in a criminal case is at the stage o f allegation only and could not have led to a situation in which a Disciplinary Authority is entitled to level the Charge No. 1.

10. As regards the Charge No. 2 (second part), he submits that but for lack of appreciation of evidence on record, same could not have been established. In this connection, Mr. P.J. Saikia, learned counsel for the petitioner has referr ed to the written representation submitted by the petitioner against the enquiry report. As regards the Charge No. 3, i.e. non-deposit of rent, he submits that since the Enquiry Officer held the petitioner not guilty of the said Charge, no weightage could have been given to the same towards imposition of major penalty of reduction in rank.

11. Mr. S.K. Medhi, learned SC, Gauhati High Court, has submitted that there being prima facie involvement of the petitioner for his alleged link with the m ilitant organisation for which a criminal proceeding is pending against him, the Charge No. 1 has rightly been held to have been established. He submits that ir respective of exoneration of the petitioner from the Charge No. 3, his involveme nt in the second part of the Charge No. 2 having been established, there is noth ing wrong in imposing the penalty of reduction in rank. He has also submitted th at prosecution sanction having been obtained in respect of the criminal charges against the petitioner, the said aspect of the matter naturally had a bearing to wards holding that the Charge No. 1 against the petitioner had been established.

12. We have given our anxious consideration to the submissions made by the l earned counsel for the parties. We have also carefully perused the materials on record including the records pertaining to the departmental proceeding. Our find ings are as follows:

13. As to what are the charges against the petitioner have been quoted above . So far as the Charge No. 1 is concerned, same is relating to conduct of the pe titioner for his alleged aiding of the members of the banned organisation and hi s arrest in connection with Chabua P.S. Case No. 43/2007. It is an admitted fact and the same need not be established in any departmental proceeding. The fact t hat the petitioner was arrested in connection with the said P.S. case alleging h is link with the banned organisation is an established fact. However, it will ha ve to borne in mind that till the criminal proceeding and the charges framed aga inst the petitioner are answered in the affirmative in favour of the State and a gainst the petitioner, he cannot be said to be guilty of the charges levelled ag ainst him. The charges will have to be gone into in the criminal proceeding foll owing due procedure and the same will have to be established against the petitio ner in accordance with law. Until such time mere involvement of the petitioner w ith the kind of allegation reflected in Charge No. 1 cannot lead to the inferenc e that he is guilty of the said charges. This being the position, the Disciplin ary Authority and the Enquiry Authority ought not have held the petitioner guil ty of the said charge.

14. As regards the Charge No. 3, it is on record that the petitioner was not responsible for non-deposit of rent, rather it is the finding of both the autho rities, i.e. the Disciplinary Authority and the Enquiry Authority, that the ren t in question in fact was deposited with the competent authority.

15. Above now leads us to the Chare No. 2 which are of two parts. The first part relates to alleged placing of verbal order with M/s. A.B. Combines for supp ly of office materials and the second part relates to misuse of the articles and for that matter misuse of the same for his own purpose. However, neither in the charge nor in the statement of allegation, there was any details as to what art icles and the quantity thereof the petitioner had allegedly misused. To that ext ent, the charges are vague, indefinite and lacks in material particulars. As p er Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964, the Discipl inary Authority is required to frame definite charges on the basis of the allega tion.

16. The Enquiry Officer has held the petitioner not guilty of the first part of the Charge No. 2 inasmuch as it was found that there was no verbal order of the petitioner with M/s. A.B. Combines, but in fact there was written order for supply of the articles. As regards the second part, the Enquiry Officer in his r eport has held that the number of articles supplied by M/s. A.B. Combines to the office did not tally with the number (some) of items entered in the stock reg ister. According to the Enquiry Officer, there was shortage of 4 packets of car tridge paper and 3 packets of type paper. It has also been held that there was n o approval for purchase of one eraser pen found available in the office which, however, the petitioner explained in the evidence that the same was for personal use of the Accountant. When the petitioner submitted his representation against enquiry report 17. he categorically explained that there was no shortage of cartridge paper and typ e paper as the supply was made on piecemeal basis. In his representation to the enquiry report, the petitioner pointed out that there was appropriate entry vide Exht. (cid:28)Cha (cid:29) accounting the entire quantity. Initially 17 packets of cartridge p aper were supplied thereafter 4 more packets were supplied. There was appropriat e entry of the same in the stock register. Similarly, although initially 17 pack ets of type paper were supplied, but subsequently, to be precise on 12.12.2006, further 3 packets of type paper had been supplied. Mr. S.K. Medhi, learned SC, GHC upon verification of the stock register, confirms the said position. It is i n this context, Mr. Saikia, learned counsel for the petitioner has submitted tha t it is a case of no evidence at all and consequently the finding recorded by th e Enquiry Officer is perverse requiring interference of this Court under Article 226 of the Constitution of India.

18. From the above, what is seen is that the Charge No. 1, Charge No. 2 (fir st part) and Charge No. 3 have not been established. So far as the second part o f Charge No. 2 is concerned, both the authorities, i.e. the Enquiry Officer and the Disciplinary Authority, although have held to have been established cannot b e said to be so in view of our discussions above. Firstly, the petitioner was n ever made known that there was shortage of 4 and 3 packets of cartridge and type paper and secondly when the stock register itself shows that there was proper accounting of the packets, the Enquiry Officer could not have held the petitione r guilty of the second part of the charge on the ground of shortage of 4 and 3 p ackets of cartridge and type paper respectively. Exht. (cid:28)Cha (cid:29) and the entry in th e stock register dated 12.12.2006 have clearly established that there was proper accounting of the packets for which supply order was placed.

19. In view of our above findings, we are of the considered opinion that the impugned order dated 04.01.2010 requires interference which we accordingly do. The impugned order dated 04.01.2010 stands set aside and quashed. Consequently, the petitioner shall stand restored back to his original position of Head Assist ant as it stood on the date of passing the said impugned order.

20. Above now leads us to the question as to whether the petitioner should b e automatically entitled to back wages for the period he remained in the reduced rank of UDA. The petitioner was placed under suspension because of his involvem ent in the criminal case as noted above. The said case has not come to an end. F urther the fact of the matter is that the petitioner did not shoulder the respon sibility of the post of Head Assistant once he was reverted to the post of lower rank of UDA. In such a situation, we are not inclined to order for back wages. However, it is hereby provided that the petitioner shall be deemed to have been continued in the post of Head Assistant irrespective of the impugned order dated 04.01.2010 with all consequential benefits except back wages. However, his pay shall be notionally fixed in the post of Head Assistant ignoring the impugned or der dated 04.01.2010. It is made clear that except notional fixation of pay, th e petitioner shall not be entitled to any back wages. The writ petition is allowed to the extent indicated above. There shall 21. be no order as to costs. Let the LCR be sent down to the establishment of Distri ct and Sessions Judge, Dibrugarh alongwith a copy of this judgment and order.