High Court
Case Details
WP(C) 2827/2010 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) The challenge in this writ petition is the order of penalty of compulsory retire ment from service passed against the petitioner pursuant to a departmental proce eding. The appellate authority has also rejected the departmental appeal preferr ed by the petitioner against the penalty of compulsory retirement. 2. llows: The brief facts leading to filing of the instant writ petition are as fo The petitioner while was serving as Upper Division Assistant (UDA) in the respon dent college, the Governing Body of the college selected him for promotion and t he proposal was forwarded to the Director of Higher Education for according nece ssary approval on 28.2.2006. Be it stated here that he was also selected as the Member from the non-teaching staff to the Governing Body of the college and the same was communicated to him vide letter dated 4.6.2005. Be it further stated he re that although the petitioner was approved for promotion to the post of Superv isory Assistant (SA) seeking approval of which, the communication dated 28.2.200 6 was made to the Director of Higher Education, Assam, during pendency of consid eration of such approval, he was allowed to hold the charge of SA by entrusting him with the routine duties and responsibilities vide office order dated 18.9.20 06. 3. When the matter rested thus, the petitioner by his letter dated 13.3.200 7 addressed to the Principal of the College requested for relieving him from the duties and responsibilities of SA and to allow him to work as UDA. In the lette r, there was a reference to the letter dated 13.3.2007 addressed to the petition er by the Principal of the College. In the letter, the petitioner raised objecti on in respect of official procedure being followed relating to certain official works. He also questioned issuance of semi official letter by the Principal/Admi nistrator, which according to him was not the correct official procedure. The le tter also pointed out the alleged financial irregularities in respect of payment of bills, more specifically bills dated 7.3.2007 and order dated 8.3.2007. He a lso raised objection regarding payment of bills to the engaged advocate. 4. It is because of the aforesaid revelations made by the petitioner to the Principal of the College, he was issued with a charge sheet dated 8.5.2007 by t he Principal-cum-Secretary of the College. It will be pertinent to mention here that the charge sheet was issued in the letter head of the Principal of the Coll ege. The charges leveled against the petitioner are as follows: (cid:28)1. That, while working as S.A. in-charge of the college you have questioned the authority of the Principal in the performance of the regular duties of the Coll ege vide your letter dated 13th March, 2007. As a Supervising Assistant it is yo ur duty to supervise the working of the office, like issue and receipt of letter s and other office procedures. But by challenging the action of the principal in the management of the College you have shown utter disrespect to the Authority and thereby misconducted yourself. 2. That, by challenging the action of entrustment and distribution of work among st various employees more particularly relating to accounts of the College you h ave undermined the Authority of the Governing Body also which amounts to gross m isconduct. 3. That, by stating about the financial irregularities in your letter dated 13th March, 2007 you have questioned the Authority of the Governing Body also in the management of the College, which amounts to gross amounts misconduct and insubo rdination. (cid:29) 5. According to the charges, the above action on the part of the petitioner amounted to gross negligence of duty, insubordination to the authority leading to gross misconduct. The petitioner was asked to submit his written statement of defence within 10 days of receipt of the charge sheet. 6. In response to the said charge sheet dated 8.5.2007, the petitioner by h is written reply dated 18.5.2007 while dealing with the charges and denying the same, requested the Principal-cum-Secretary of the College to exonerate him from the charges. In the explanation, the petitioner categorically stated that he ha d never questioned the authority or the Principal. He also pointed out that he h ad only pinpointed his feelings and objection in respect of the procedural lapse s in day-to-day running of the official works. Referring to his long 34 years of experience in the college as office assistant, he in his written explanation su bmitted that he thought it prudent to bring the irregularity to the notice of th e authority for smooth functioning of the college. Thus, virtually his explanati on centered around the procedure to be followed in conducting the official busin ess. 7. The petitioner has also brought on record the Annexure-G letter dated 31 .5.2007 addressed to the Principal of the College by the college teachers’ unit, in which also procedural lapses were pointed out. For a ready reference, the sa id letter dated 31.5.2007 is reproduced below:
Legal Reasoning
(cid:28)We are of the opinion that your presence in the college at this juncture was in dispensable. It is a matter of regret that the Principal of Handique Girls’ Coll ege has proceeded on leave at this point of time and that too without handing ov er charge to the Vice- Principal. On being approached the Vice- Principal has in formed us that she has been only requested to ’look after all matters related to the college activities. (cid:29) The Vice - Principal has also not been provided a sing le farthing to meet the contingency expenditure of this College during the Princ ipal’s period of absence. (cid:28) 8. The Principal-cum-Secretary of the College without recording any reason as to whether she was satisfied or not with the explanation furnished by the pet itioner, appointed an Enquiry Officer to conduct enquiry in respect of the afore said charges leveled against the petitioner. Later on, the Enquiry Officer was c hanged and by letter dated 20.7.2007 another Enquiry Officer was appointed. On 2 4.7.2007, the Principal of the College intimated the petitioner about the reques t of the Enquiry Officer to meet the petitioner in the college on 26.7.2007 to 2 8.7.2007 and on 30.7.2007 to 31.7.2007 in between 10 to 10-30 AM for enquiry. Th us it was not the Enquiry officer, who had furnished any information to the peti tioner regarding enquiry, but it was the Principal of the College, who had issue d the charge sheet, requested the petitioner to meet the Enquiry Officer on the aforesaid dates, without, however, intimating him as to whether he is entitled t o any defence assistant or is also entitled to adduce any evidence or not. Signi ficantly, the letter did not mention anything about examination of any witnesses on behalf of the disciplinary authority. It was only after the aforesaid development, the Principal of the Colleg 9. e by her letter dated 4.8.2007 (Annexure-A) appointed one Presiding Officer on b ehalf of the disciplinary authority. The Presiding Officer was appointed to assi st the Enquiry Officer. By another letter issued on the same date i.e. 4.8.2007, the petitioner was directed to appear before the Enquiry Officer during 6th to 9th August, 2007 (10-30 AM). The letter also refers to the earlier appearance of the petitioner before the Enquiry Officer during the period from 24th to 27th J uly, 2007. 10. According to the petitioner, no witness was examined by the disciplinary authority nor any documents were produced and exhibited during the enquiry. It
Decision
is also the specific case of the petitioner that he was not given any opportunit y to adduce his evidence and/or to examine or verify any documents before or aft er framing of the charges. It has been specifically stated in the writ petition that the petitioner was also not given any opportunity to adduce evidence either oral or documentary. On conclusion of the enquiry, the Enquiry Officer submitte d his report, on the basis of which the Governing Body of the College headed by the Principal-cum-Secretary passed the Annexure-M resolution dated 30.8.2007 imp osing the penalty of compulsory retirement with effect from 1.9.2007. 11. Before adopting the said resolution, the petitioner was not provided wit h the copy of the enquiry report enabling him to make representation against the same. The copy of the enquiry report, which has been annexed to the writ petiti on as Annexure-N was provided to the petitioner only after imposition of penalty . The enquiry report was submitted to the Principal of the College on 25.8.2007. The relevant portion of the enquiry report is quoted below: (cid:28)Finally, whatever Sri Ramesh Ch. Bhattacharya has done there was always a motiv e seeking welfare of the Handique Girls’ College, he has wanted as it appears af ter sitting with him during the enquiry that office administration should be str ong and this center of learning should achieve further Excellence. But the path followed by him since his appointment as S/A was wrong, it has crea ted bitterness and it appears that he has also felt fatigue. His over activism virtually is proved as misconduct and goes against the spirit of Rule-3 of the Assam Civil Services (Conduct) --- Rules, 1965 which is reprodu ced below:- Assam Civil Services (Conduct) Rules 1965. maintain absolute integrity. (i) Maintain devotion to duty. (ii) Do nothing which is unbecoming of Government Servant. (cid:29) (iii) 12. The Governing Body of college in its resolution adopted on 20.8.2007 whi le imposing the penalty of compulsory retirement on the petitioner made the foll owing observation: (cid:28)In the matter of final disposal of the Departmental Proceedings by imposing a p enalty on Sri Ramesh Ch Bhattacharya, the Governing body has taken into consider ation the fact that there should not be any pecuniary loss to Sri Bhattacharya a nd for ensuring that the authority has taken a decision to retire Sri Ramesh Ch Bhattacharya S/A I/C on compulsory Retirement as per the provision of FR56(b), g iving hereby three months advance notice and as per which his retirement will co mmence on 1.12.2007 and the three months advance notice given hereby will come i nto effect from 1st Sept.. 2007. Since Sri Ramesh Ch Bhattacharya S/A I/ C has already completed 33 years of service, he is supposed to avail the benefit of fu ll amount of Pension as per Assam Service Pension Rules. (cid:29) 13. After imposition of the aforesaid penalty of compulsory retirement, the same was approved by the Director of Higher Education by his order dated 6.11.20 07, which was followed by an independent order of the Principal of the College d ated 23.11.2007 notifying the compulsory retirement of the petitioner from servi ce. 14. Being aggrieved by the order of compulsory retirement, the petitioner ma de an appeal to the Government of Assam in the Education Department on 29.11.200 7, which was sent to the Director of Higher Education for necessary order. When nothing was done in the matter, the petitioner by his Annexure-D appeal dated 27 .2.2009 addressed to the Commissioner & Secretary, Government of Assam, Higher E ducation requested for early disposal of the appeal upon providing him a persona l hearing. When the same did not yield any result, the petitioner approached thi s Court by filing a writ petition being WP(C) No. 3597/2009. The writ petition w as disposed of by order dated 28.8.2009 directing the appellate authority for ea rly disposal of the appeal. Thereafter, the Director of Higher Education, Assam submitted a report to the Government of Assam in the Education (Higher) Departme nt in respect of the appeal petition that was preferred by the petitioner. In th e report, the following conclusion was recorded: (cid:28)Conclusion: It can therefore be concluded that there was procedural lapses on the part of th e college authority in adopting the decision of compulsory retirement of Sri Ram esh Chandra Chattacharyya, which violated the rule and the punishment so meted o ut to the incumbent was taken in a harsh and hasty manner. (cid:29) 15. The appeal preferred by the petitioner was disposed of by the Government of Assam in the Higher Education Department vide the Annexure-W order dated 21. 4.2010. On the face of it, the order is non-speaking one. For a ready reference, the order is reproduced below: (cid:28)The Hon’ble High Court vide order dated 28-08-09 have directed the undersigned to dispose off the Appeal Petition of shri Ramesh Ch Bhattacharjya, U.D.A. of H andique Girls’ College as received from the Director of Higher Education vide le tter No. G (B) CC/ 80/09/73 dated 29-1-2010. Sri Ramesh Ch Bhattacharjya has bee n heard and the records pertaining to the case in the office of the director of Higher education have been examined. Sri Ramesh Ch Bhattacharjya in his Appeal stated that the Principal Handique Gir ls’ College retired him compulsorily from service with effect from 11-12-2007. H e has stated that while imposing the penalty of compulsory retirement the author ities of Handique Girls’ College did not give him an opportunity to defend him-s elf. It is seen from the records that Sri Ramesh Ch Bhattacharjya always created bitt erness and questioned the performance of his Higher Authorities. In view of this a charge sheet was duly served on him and he was heard by the Inquiring Officer . Since the charge levelled against Sri Ramesh Ch Bhattacharjya are grave and he w as given a due hearing by the Inquiring Officer, the penalty imposed on him is i n order. This appeal is hence rejected. (cid:29) 16. I have heard Mr. D.K. Sarmah, learned counsel for the petitioner as well as Mr. D.P. Chaliha, learned Sr. Counsel, assisted by Mr. I. Ahmed, learned cou nsel for the respondent college. I have also heard Mr. J. Abedin, learned Standi ng Counsel, Education Department. Considering their submissions and also the ent ire materials on record, including the record produced by Mr. Chaliha, learned c ounsel appearing on behalf of the college authority. My findings and conclusions are as follows: As noted above, the charges were leveled against the petitioner on the b 17. asis of his letter dated 13.3.2007 addressed to the principal of the College. Th e petitioner was not only the I/C Supervisory Assistant of the college, he was a lso a Member of the Governing Body of the college representing the non-teaching staff. In the letter, he pointed out certain procedural irregularities being fol lowed in conducting the official business, but the same did not find favour of t he authority and immediately thereafter, he was issued with the charge sheet dat ed 8.5.2007 leveling the aforesaid charges. The charges clearly mentioned the ba sis of the same as the petitioner’s letter dated 13.3.2007. 18. According to the charges, the petitioner had challenged the action of th e Principal in the management of the college and also undermined the authority o f the Governing Body of the College and thereby had shown dis-respect to the col lege authority. It is on that basis, the petitioner was attributed with gross mi sconduct. On a total reading of the letter dated 13.3.2007, nothing is discernib le as to how the same could be construed to be any challenge to the action of th e Principal and showing any dis-respect to the authority. There is also nothing discernible undermining the authority of the Governing Body. If the petitioner, a responsible official staff, coupled with his duties and responsibilities as Me mber of the Governing Body representing the non-teaching staff had brought out c ertain irregularities in the adopted procedure in official management, same ough t to have been viewed in its true prospective, but instead the authority of the college viewed the same to be an act of dis-respect to the authority. Thus, the letter and the contents thereof were not accepted by the college authority in it s true spirit, which led to the unfortunate episode of initiation of the departm ental proceeding against the petitioner and eventual imposition of penalty of co mpulsory retirement. 19. Apart from the fact that the charges are all vague and indefinite and al so not in reference to any purported conduct on the part of the petitioner, in t he enquiry proceeding also no evidence was adduced by the Presenting Officer on behalf of the disciplinary authority to establish the charges. The petitioner wa s also not afforded with any opportunity to engage defence assistant and/or add uce evidence either oral or documentary. Not only that the petitioner was impose d with the penalty of compulsory retirement without furnishing him the copy of t he enquiry report. The Governing Body while doing so could not attribute any mis conduct as such on the part of the petitioner. However, taking recourse to a sho rt-cut method imposed the penalty of compulsory retirement on the petitioner by invoking the provisions of FR 56 (b). FR 56 (b) enables the appropriate authority to retire a Government serv 20. ant prematurely on attaining the age of 50 years or on completion of 25 years of service upon formation of an opinion that it is in the public interest to do so . But in the instant case, the petitioner was imposed with the penalty of compul sory retirement pursuant to a departmental proceeding, but while doing so, the c ollege authority acted under the provision of FR 56 (b) and not the provision of Rule 7 of the Assam Services (Discipline & Appeal) Rules, 1969, which provides compulsory retirement as one of the punishment. Thus, here is a case, in which t he college authority having failed to bring home the charges against the petitio ner invoked the provisions of FR 56 (b) so as to retire him from service compuls orily without, however, forming any opinion as to whether the same was in public interest or not as was required to be so formed as per the said provision. 21. As to what is the finding of the Enquiry Officer has been noted above. I t has been categorically held in the finding that what the petitioner had done, the same was with a motive seeking welfare of the college, but the Enquiry Offic er found fault with the methodology adopted by him in writing the aforesaid lett er dated 13.3.2007, which formed the basis of the charges issued against him. 22. In the appeal the petitioner had detailed all the grounds regarding non- maintainability of the enquiry proceeding and the order of penalty, but the appe llate authority by his above quoted order (absolutely non-speaking) upheld the o rder of compulsory retirement. In the order, the appellate authority recorded th e particular creation and bitterness by the petitioner in questioning performanc e of his higher authority. However, in the charges leveled against the petitione r, there is no mention of creating any bitterness by him and questioning perform ance of the higher authority. Thus, the appellate authority added an additional ground towards upholding the order of penalty. However, while doing so, the said authority did not deal with the grounds assigned in the appeal. 23. Above being the position, I have no hesitation to hold that the entire d epartmental proceeding initiated against the petitioner was vitiated by procedur al irregularities and the findings recorded by the Enquiry Officer are all perve rse and not based on any evidence. The entire episode was the creation of the pr incipal-cum-Secretary and also the Government Body only because the petitioner w anted that the college should follow due procedure in the official business whic h aspect of the matter also was pointed out by none other than the teachers’ uni t of the college. In view of the above, both the impugned orders i.e. the order of compuls 24. ory retirement imposed on the petitioner effective from 1.9.2007 followed by app roval thereof accorded by the Director of Higher Education and also the appellat e order dated 21.4.2010 stands set aside and quashed. Consequently the petitione r shall be deemed to be in service all throughout till he attained the age of su perannuation, which is stated to be 28.2.2011. 25. This now leads us as to the question as to whether the petitioner is ent itled to get all consequential benefits including arrear salary and promotion to the post of S.A. for which, he was recommended and the matter was pending with the Director of Higher Education for according approval. The approval could not be provided as the departmental proceeding was pending against the petitioner. H owever, once the departmental proceeding came to an end in favour of the petiti oner with the passing of this judgment and order, the Director of Higher Educati on, Assam will have to consider granting approval of the recommendation made for promotion of the petitioner to the post of S.A. Accordingly, direction is hereb y issued to the Director of Higher Education to consider granting of approval to the promotion of the petitioner to the post of S.A. from the due date. As regar ds payment of arrear salary either in the post of UDA or in the post of S.A, in the given facts and circumstances, I am not inclined to grant full pay and allow ances to the petitioner. I am of the considered opinion that ends of justice wou ld be met if the petitioner is provided 50% of the back wages treating him to be in service all throughout till he attained the age of superannuation on 28.2.20 11 including pensionary and other retirement benefits. 26. possible, preferably within 31.1.2014. Let the required exercise be carried in this regard as expeditiously as 27. parties to bear their own costs. The writ petition is allowed to the extent indicated above, leaving the