High Court
Case Details
WP(C) 1802/2009 BEFORE HON’BLE MR. JUSTICE B.K.SHARMA Judgment and Order [ ORAL }
Decision
The challenge in the writ petitioner is the order dated 19.12.2008, by which pur suant to a Departmental Proceeding, the petitioner has been imposed with the pen alty of compulsory retirement under Rule 7 of the Assam Services (Discipline and Appeal) Rules 1964. According to the petitioner, the order is illegal having be en issued in gross violation of the Principles of natural justice. 2. The petitioner was first appointed as Lecturer in Physics in Assam Educa tion Services II vide notification dated 30.05.1992. He was appointed at Diphu G overnment College. Thus by the time he was imposed with the penalty of compulsor y retirement, he had completed about 16 years of service. 3. As stated in the writ petition, after serving at Diphu Government Colleg e for about eight years, the petitioner was released by the authority of the Kar bi Anglong Autonomous Counsel vide order dated 08.12.2000 and his service was pl aced at the disposal of the Government of Assam in the Education Department. Acc ording to the petitioner, since there was no mention of place of posting, he cou ld not join in any post and thus he filed a writ petition being WP(C) 3191/2001. The writ petition was entertained by order dated 03.05.2001 and an interim orde r was passed directing the respondent to provide posting to the petitioner in a Government college. Thereafter, vide notification dated 14.06.2001, the petition er was allowed to join as Lecturer in Physics in Nagaon Polytechnic with immedia te effect. According to the petitioner, the said order was passed by Government arbitrarily. As stated in paragraph 6 of the writ petition, the petitioner was e xpecting his posting in any Government College and not at Nagaon Polytechnic and accordingly he made several representations for allowing him to join in the Gov ernment College instead of Nagaon Polytechnic. According to the petitioner, his representations did not yield any resul 4. t and he had to join at Nagaon Polytechnic on 31.11.2004. Thus, the petitioner j oined the Nagaon Polytechnic after about three and half years of issuance of the notification dated 14.06.2001. As per the own admission of the petitioner there was a period of absence on the part of the petitioner from 14.06.2001 to 31.11. 2004 (paragraph 6 of the writ petition). 5. In paragraph 7 of the writ petition, the stand of the petitioner is that although he had joined at Nagaon Polytechnic on 31.11.2004 and was discharging his duties regularly, but the Authority did not pay him salary and also did not regularize the period of absence from 15.06.2001 to 29.11.2004. The petitioner o nce again filed a writ petition being WP(C) No. 5121/2006 with a prayer to relea se his salary along with other benefits. The writ petition was disposed by order dated 11.12.2006 directing the respondents to release the admissible salary to the petitioner from December, 2005 subject, however, to the condition that there was no impediment towards release of such salary. When the matter rested thus, the petitioner was charge sheeted on 20.09.2007 in which the following three cha rges were leveled (cid:28)(1) (a) That while you were serving as lecturer in Physics in Diphu Government College you were transferred to Nagaon Polytechnic as Lecturer in Physics vide G overnment order No.B(2)H288/201/45 dated 29.10.2002. But you did not report for duty till 05.01.2005 without any information to the Higher Authority. (b) The Principal Nawgaon Polytechnic vide letter No. NP(E)P-03 dated 17.11.2006 had intimated that you have remained absent continuously from duty without any information since November, 2005 although the authority had informed you to join but you had failed to report in your duty. (C) That from the correspondence made from the Principal, Nawgaon Polytechnic, i t revealed that you have not taken a single class during the earlier session and also in the session which started from 17.04.2007 and due to your continuous ab sence the students on the Institution suffered badly. Therefore, you are charged with gross misconduct and negligence towards duties a s well as to the authority concerned. (2) That while you were serving as lecturer in Physics Department in Nagaon Poly technic, you did not attend to your duties and also not taken a single class til l 09.12.2005 even after repeated instruction from the Principal concerned of the Institution. Your unauthorized absence from duties led to severe dislocation of academic activities of an Educational Institution. You did not respond to the l etter issued by the Director of Technical Education Assam vide memo No. TEM.6/20 03/319 dated 18.01.2006 till date wherein you were asked to explain the reason o f your said unauthorized absence. In fact, you have remained absence and have no t taken a single class as reported by Principal, Nawgaon Polytechnic. Therefore, you are charged with in subordination/dereliction of duty. (3) That while you were serving as lecturer in Physics in Nogaon Polytechnic, yo u received & show cause notice from the Director, Technical Education, Assam but on receipt of it, you misbehaved the Principal, Nawgaon Polytechnic in front of the staff members of the Institute. Therefore, you are charged with gross misconduct. (cid:29) 6. As recorded in the charge-sheet preliminary inquiry was set up by the Di rector of Technical Education, vide order dated 10.02.2006 and in the fact findi ng inquiry, the aforesaid charges were said to have established. The petitioner was provided ten days to submit his written statement of defence. 7. Along with the charge-sheet the statement of allegations and the lists o f documents and witnesses were also furnished. On receipt of the charge sheet, t he petitioner, vide his Annexure-E, representation furnished the reply to the ch arges leveled. In the reply, the petitioner referred to the facts mentioned abov e, but denied the charges. 8. The Disciplinary Authority conducted an inquiry and the Inquiry Officer, by his report dated 18.03.2000 held the petitioner guilty of all the three char ges. Thereafter the impugned order having been passed, the petitioner approache d this Court by filing the instant writ petition. 9. I have heard Mr. U K Nair, learned counsel for the petitioner and I have also heard Mr. U. K. Goswami, learned Standing Counsel, Education Department. I have also gone through the entire materials and records including the records p My findings and conclusions are as follows: roduced by Mr. U. K. Goswami, learned Standing Counsel, Education Department. 10. The basis grounds on which the writ petition is structured and as has been refer red to by Mr. U K Nair, learned counsel for the petitioner is in paragraphs 13, 15 and 16 of the writ petition, which are quoted below: (cid:28)13. That your petitioner states that the Enquiry Officer appointed by the Disci plinary Authority conducted the enquiry in a most perfunctory manner by violatin g all due procedure established by law depriving the petitioner of his valuable right of presenting his case by adducing evidence and cross-examining the so cal led witnesses who allegedly gave their statement against the petitioner and the authority thereafter did not provide him even the copy of the enquiry report sub mitted by the Enquiry Officer on 18.03.2008 causing great injustice to the petit ioner not only in violation of the mandatory provisions of law but also in gross violation of the principles of natural justice and as such the said departmenta l proceeding cannot be sustained in law and is liable to be set aside and quashe d. A typed copy of the Enquiry Report dated 18.03.2008 is annexed herewith and mark ed as Annexure-F (cid:29) 15. That your petitioner submits that it was incumbent on the part of the respon dent authority to adhere to the laid down procedure governing the departmental e nquiry. The petitioner was not allowed to present his case by adducing evidence, he was also denied his valuable right to file a detailed written statements aft er inspection of relevant documents. The petitioner was also not allowed to cros s examine the witness thereby causing great miscarriage of justice. Therefore, t he impugned order dated 18.12.2008 is liable to be set aside and quashed. 16. That your petitioner submits that the enquiry officer conducted the enquiry in a perfunctory manner without observing any procedure established by law and t he principles of natural justice. The Enquiry Officer hurriedly concluded the en quiry on a single day i.e. on 15.03.2008. The enquiry officer failed to take int o account the factor explained by the petitioner for his absence since February, 2007. There is also no reference to the documents on records exhibited before t he enquiry to prove the charges. The enquiry officer in his enquiry report faile d to record his finding on each charges and reason thereof which is mandatory on the part of the enquiry officer while submitting his report of the enquiry and the disciplinary authority without assigning any reason accepted the finding of enquiry officer and issued the impugned order dated 19.12.2008 placing the petit ioner under compulsory retirement. The impugned order dated 19.12.2008 under cha llenged is therefore liable to be set aside and quashed forthwith as being illeg al, arbitrary and violative of the rules and procedures prescribed under Assam S ervices (Discipline and Appeal) Rules, 1964 as well as the Principles of natural justice. (cid:29) 11. Mr. U K Nair, learned counsel for the petitioner has submitted that sinc e the inquiry was conducted in a perfunctory manner and in gross violation of th e Principle of natural justice, the same is liable to be interfered with. On the other hand, Mr. U. K. Goswami, learned Standing Counsel, Education Department, has submitted that when the petitioner himself has admitted the facts stated in the charge-sheet, nothing more is required to be proved as the admission of fact s amounts to admission of guilt. Referring to the own statement of the petitione r in the inquiry proceeding, Mr. Goswami, submits that the said statement of the petitioner would go to show that the charges leveled against the petitioner wer e admitted by the petitioner himself. As regards the plea of violation of Princi ple of natural justice, Mr. U. K. Goswami, learned Standing Counsel, Education D epartment, has submitted that the petitioner having not shown any prejudice havi ng been caused to him in his defense, merely by raising such plea the petitioner cannot absolve himself from the facts alleged and proved in the inquiry. 12. As noted above, pursuant to the Departmental Inquiry, the Inquiry Office r found the petitioner guilty of all the charges. As to what are the charges lev eled against the petitioner, has been noted above. The charge No.1 and 2 relate to unauthorized absences from duty and the charge No.3 relates to the misbehavio r on the part of the petitioner against the Principal of Nagaon Polytechnic in f ront of staff members of the Institute. In the reply to the charge-sheet the pet itioner raised the question relating to his release from Diphu Government Colleg e and as to how he was expecting his posting in a Government College and not in the Nagaon Polytechnic. It is not the case of the petitioner that in no circumst ances he could have been posted to Nagaon Polytechnic. In the reply also, the fa ct of not attending the Nagaon Polytechnic even after his posting for about two and half years was not denied. The petitioner himself has annexed the statement made by various witness 13. es during the inquiry. In the statement made by the petitioner himself before th e Inquiry Officer, he made the following submissions (cid:28) (cid:28) I joined at Nawgaon Polytechnic as a Sr. Lecturer on 30th November/2004. At th at time Ramcharan Das was the Principal of the institute. I was allotted classes from 1st week of December, 2004. I attended classes from the very date as per t he date of allotment. That I attended classes can be ascertained from the fact t hat I drew my pay up to October, 2005. From February, 2007 I was not attending c lasses. Before that date I was regularly attending classes. I was not attending classes because the Principal did not allot any classes to me. That I was continuously absent from duty from November, 2005 is false. I deny th e charge. I was not attending classes during the session 17.04.2007 as the Principal held up my pay since November, 2005. Regarding charge No.2, there is no truth at all. I deny the charge. There was an incident of misbehavior with Principal by me which I cannot remembe r now what actually happened. xx I received the letter ND(E)P-03/1645/46 dated 21.10.2005 asking me to attend cla sses. I did not give any reply in black and white, but I was attending duties. I received one letter No.TEM.6/2003/31 dated 18.01.2006. The DTE, Assam. He had asked for my explanation for my unauthorized absence. I have not given any reply xx xx to the DTE. After getting the explanation letter I met the Principal and told him that he sh ould not have written allegation to the DTE against me. Instead he could have so lved the problem at his own level. I told him that he signs the papers as writte n by the Dealing Assistant without applying his mind. (cid:29) 14. From the above statements of the petitioner made during the inquiry what is seen is that the petitioner himself admitted that from November, 2007 he was not attending classes. The reason for not attending classes was stated to be no n-allotment of classes to him. Even if the said statement of non-allotment of cl asses to him is believed, then also the petitioner could not avoided attending t he college. 15. Secondly, in the said statement, the petitioner categorically admitted that during the particular session he did not attend classes as the Principal ha d held up his pay since November, 2005. If the pay was held up by the Principal the remedy of the petitioner was elsewhere and not by non-attending classes. 16. Relating to charge No.3, the petitioner himself stated in his statement that there was an incident of misbehavior with the Principal, only defence was t hat he did not remember as to what had actually happened. 17. As regards to repeated reminders sent to him for attending classes, the petitioner admitted that he had received the letter dated 18.01.2006, from the D irector of Technical Education, Assam asking for explanation in respect of his u nauthorized absence from duties. The petitioners stand in the matter was that he did not give any reply meaning thereby that he accepted the contents of the let ter. In the statement he also stated about telling the Principal of the College that he should not have sorted out the matter to the higher Authority and he sho uld have sorted out the matter with him. 18. The other witnesses examined in the inquiry were also members of the fa ct finding Inquiry Committee. They all stated about the facts as narrated in the charges. There was no cross examination on the part of the petitioner. 19. Although, in the above referred paragraphs, in the writ petition, the pe titioner has stated about violation of the principal of natural justice and deni al of cross examination etc. but the records have revealed that the inquiry was conducted in the particular chamber in presence of the witnesses and also the pe titioner. This aspect of the matter specifically finds mention in the Para wise comments prepared by the Departmental Authorities. Moreover the alleged denial o f the right of cross-examination as stated in the above paragraphs is vague and indefinite. The petitioner having not pleaded any prejudice having been caused t o him in the inquiry, merely on making certain statements in that direction, can not absolve him of the charges. As has been held by the Apex Court in Channabasa ppa Basappa Happali Versus State of Mysore reported in AIR 1972 SC 32 the admiss ion of facts alleged in the charge-sheet amounts to admission of guilt. The peti tioner himself having admitted the facts attributed against him in different cha rges, he cannot argue on the purported irregularity in conducting the inquiry. 20. ion and accordingly it is dismissed. Before parting with the case records, it is hereby provide that since th 21. e petitioner is imposed with the penalty of compulsory retirement, subject to fu lfillment of the requirement of qualifying service for the purpose of pension, h e may be provided with the same. 22. For all the aforesaid reasons, I do not find any merit in the writ petit I leave the parties to bear their own costs.