High Court · 2012

Heard Mr. D.K. Mishra, learned senior counsel assisted by Mr. J. Chutia, learned counsel for the petitioner as well as Dr. B. Ahmed, learned Standing Counsel, I rrigation Department. I have also heard Ms. B. Dutta, learned State Counsel repr esenting Panchayat and Rural Development Department.

2. The petitioner, presently serving as additional Chief Engineer in the Ir rigation Department, is aggrieved by Annexure-11 order dated 13.8.2010, by which the disciplinary authority has ordered for a further enquiry in reference to pa ra 6.18.1.(2) of Chapter VI of the Manual of Departmental Proceeding. For a read y reference, the impugned order is quoted below :- (cid:28)GOVERNMENT OF ASSAM PAYCHAYAT & RULRA DEVELOPMENT DEPARTMENT DISPUR :::: GUWAHATI No. RDD 329/2005/278 Dated, the 13th August, 2010 ORDER Whereas departmental proceeding was drawn against Sri Kujendra Doley, the then E xecutive Engineer, District Rural Development Agency, Dhemaji and show cause not ice was issued vide No. RDD 329/2005/47 dtd. 12.4.2006 on charges of dereliction of duties, falsification of records, misappropriation of govt. money. The writt en statement of defence was submitted by the Delinquent Officer vide his letter No. TD 17/EE/P/06-07/7 dtd. 29.7.2006. 2) Whereas the reply of the Charged Officer was not found satisfactory agai nst the charges. The disciplinary authority who is also the Appointing Authority had decided to enquire by way of departmental proceedings by appointing the Sta te Enquiry officer, Assam as Enquiry Officer vide Notification No. RDD 329/2005/ 143 dtd. 31.5.2007 and Presenting Officer vide No. RDD 329/2005/143 dtd. 31.5.20 07. Whereas the Enquiry Officer has submitted his enquiry report vide No. AB 3) E 2/2007/32 dtd. 9.6.2010. On perusal of the enquiry report received from the St ate Enquiry Officer (Enquiry Officer), it was found that the Enquiry Officer has not pointed out relevant facts and has submitted incomplete report. 4) For end of justice, the Governor of Assam is pleased to set aside the re port of enquiry submitted by the State Enquiry Officer and to order further enqu iry as per provision made under para 6.18.1.(2) in Chapter of the Manual of Depa rtmental Proceedings. 5) Mrs. Aparana Dey, Joint Secretary, Panchayat &n Rural Development Depart ment is appointed as the new Enquiry Officer. Further, the new Enquiry Officer b esides the material on record will be at liberty to examine and call for further documents / take witnesses, if found essential during enquiry. Shri P.K. Choudhury, Supdt. Panchayat & Rural Development, (C) Branch is appointed as the presenting Officer. Sd/- A. Kumar Principal Secretary to the Govt. of Assam, Panchayat & Rural Development Department. (cid:29) The petitioner while was working as Executive Engineer, DRDA, Tinsukia, 3. was served with the show cause notice dated 12.4.2006 under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 read with Article 311 of the Consti tution of India. By the said charge sheet, five charges had been levelled again st the petitioner. In due course, the departmental enquiry followed in respect o f the charges and the Enquiry Officer by his letter dated 9.6.2010 (Annexure-9), addressed to the principal Secretary, Panchayat & Rural Development Department, submitted the enquiry report exonerating the petitioner from all the five charg es with the following conclusion :- (cid:28)I basing on the above observations conclude that the charges framed against the Charged Officer could not be established beyond any reasonable doubt. Therefore , I recommend that the Charged Officer may be exonerated from all the charges an d the departmental proceeding may be dropped. (cid:29)

4. On receipt of the enquiry report, the disciplinary authority having pass ed the above quoted Annexure-11 impugned order dated 13.8.2010, the petitioner h as approached this Court assailing the legality and / or validity of the course of action adopted by the disciplinary authority as indicated in the said order.

5. Mr. D.K. Mishra, learned senior counsel for the petitioner submits that the provisions of Rule 9 of the Assam Services (Discipline and Appeal) Rules, 19 64 do not suggest the course of action as has been adopted by the disciplinary a uthority vide the impugned order dated 13.8.2010. As regards the provisions of p ara 6.18.1(2) of Chapter-VI of the Manual of Departmental Proceeding, he submits that the provisions contained in the manual cannot override the statutory provi sions. He also submits that the said provision is applicable only in respect of any material irregularity in conducting the enquiry causing prejudice to the per son charged. For a ready reference, the said provision i.e. para 6.18.1 is also quoted below :- (cid:28)6.18.1. - Where the Disciplinary Authority, on a contention raised by the perso n proceeded against or otherwise finds that any material irregularities have bee n committed and that they have caused or they may cause prejudice to the person charged or such irregularities are likely to vitiate the proceedings, it will co nsider - (1) ed denovo : or Whether the whole enquiry should be sent aside and a fresh enquiry start (2) egularity and it be ordered to be started afresh from that particular stage. Whether the enquiry be set aside from the stage of occurrence of the irr

6.18.2 - As far as possible, where ends of justice can be served and so l ong as the person proceeded against is given reasonable opportunity of being hea rd, efforts should be made to resume the enquiry from the stage at which the irr egularity occurred. (cid:29)

6. In support of the aforesaid submissions made by Mr. D.K. Mishra, learned Senior Counsel for the petitioner coupled with the submission that if the cours e of action suggested in the impugned order dated 13.8.2010 is upheld, the same would lead to a situation in which the enquiry proceeding would go on perpetuall y untill the view of the Enquiring Authority is in accord with that of disciplin ary authority, he has referred to the decision of the Apex Court reported in (20 02) 10 SCC 471 (Union of India Vs. K.D. Pandey and Another).

7. Dr. B. Ahmed, learned Standing Counsel, Irrigation submits that it is w ithin the competence and jurisdiction of the disciplinary authority to disagree with the findings of the enquiry Officer and to record its own findings. Accordi ng to him, the impugned order dated 13.8.2010 is in that direction. Ms. B. Dutta , learned State Counsel has adopted the said argument of Dr. B. Ahmed.

8. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties and have also gone through entire materials on reco rd.

9. The impugned order dated 13.8.2010 has been noted above. The Enquiry Off icer has exonerated the petitioner from all the five charges. Under Rule 9 of th e Assam Services (Discipline and Appeal) Rules, 1964, on conclusion of the enqui ry, the Enquiring Authority shall prepare a report of the enquiry recording his findings on which all the charges together with the reasons there for. Thereafte r, the enquiry report is to be submitted to the disciplinary authority. Under Ru le 9(9), the disciplinary authority is to consider the report of the enquiry and record his findings on each charges. Nowhere, in the said provisions, any power of the disciplinary authority is contemplated to set aside the enquiry report a nd then to order for further enquiry by appointing another Enquiry Officer. As h as been held by the Apex Court in K.D. Pandey (Supra), if the impugned order is allowed to stand, the same would be that the enquiry against the petitioner can go on perpetually untill the view of the Enquiry Officer is in accord with that of the disciplinary authority. In the said decision, the Supreme Court has held that such a course of action would an abuse of the process of law.

10. As regards the provision of para 6.18.1, apart from the fact that the sa me is not a statutory provision but only executive instruction, the same is also applicable only in case of any material irregularity in conducting the enquiry causing prejudice to the delinquent official. The said provision cannot override the statutory provision envisaged in the Assam Services (Discipline and Appeal) Rules, 1964. It is also not the case of the disciplinary authority that in the enquiry there was any material irregularity in conducting the enquiry and / or t hat the impugned action contemplated is to remove any prejudice caused to the p etitioner.

11. For all the aforesaid reasons, I am inclined to accept the writ petition and accordingly, the impugned order dated 13.8.2010 stands set aside and quashe d. The disciplinary authority may take appropriate decision on the basis of the enquiry report.

12. At this stage, Mr. D.K. Mishra, learned senior counsel for the petitione r submits that the writ petition is also structured on some other legal points. However, in view of the above findings I am not inclined to go into those aspect s.

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