High Court
Case Details
WP(C) 2752/2012 BEFORE THE HON’BLE MR. JUSTICE N. CHAUDHURY Judgment & Order (Oral) The order dated 09.05.2003, passed by the Commissioner of Transport, Assam, Guwa hati, dismissing the petitioner from service and the order dated 05.08.2010, uph olding the said order of dismissal on appeal have been assailed in this writ pet ition. 02. The petitioner, Fargul Enam was working as a Chowkidar in the of fice of the District Transport Officer, Karimganj since 05.07.1985. He was place d under suspension on 02.11.2001 and on 06.02.2002 a letter was issued to him as king him to submit written statement alleging that he ’had committed gross irreg ularities and malpractices, specially tampering registration book of M.V. No.ML- 04-1907 and had cheated the Transport operators’. It was also further alleged th at the petitioner had confessed his offence. Along with the said letter, ’a stat ement of allegation’ alleging commission of ’gross irregularities and mal-practi ces, specially tampering registration book of M.V. No.ML-04-1987 forgery and che ating the Transport Operators’ was mentioned without any specific mention of inc idents. In the list of documents, only one document i.e. letter No.DTK. 732/MV/0 1, dated 16.10.2001 from DTO, Karimganj was mentioned and three witnesses, namel y, 1. District Transport Officer, Karimganj, 2. Aziz Uddin, UDA (Cashier) and 3. Abdul Mutlib, owner of vehicle No.ML-04-1907 have been mentioned in the list of witnesses. The petitioner states that he submitted reply to the show cause noti ce against the said letter and in paragraph 2 thereof he specifically denied the allegations levelled against him. Rather, in paragraph 4 of the said show cause reply, he made allegations against Aziz Uddin (Cashier) and the District Transp ort Officer of entering into conspiracy and of forcefully collecting his signatu re & written statement. Thereafter, on 31.05.2002, the petitioner was served wit h a second show cause notice and in that notice it is mentioned that the petitio ner had failed to appear on the date of enquiry on 26.04.2002 even after receipt of the said letter dated 14.04.2002 and as such he was guilty of gross insubord ination. It was held therein that his explanation dated 19.03.2002 was unsatisfa ctory and, thereafter, he was asked to submit the written statement within 10 da ys. On 25.03.2003, the then Commissioner of Transport informed the petitioner by his letter that he should submit his written statement against the second show cause notice failing which ex-parte decision was threatened. The petitioner clai ms to have submitted reply thereto on 07.04.2003 wherein he reiterated his defen ce of total denial. On 09.05.2003, the Commissioner of Transport, Assam dismisse d the petitioner from service holding that his involvement in forgery, tampering of documents and cheating the public, particularly Transport Operators was prov ed. As the appeal submitted by the petitioner against the same did not evoke any result, he approached this Court through WP(C) No. 1699/2010, and this Court, b y an order dated 29.03.2010 directed the Appellate Authority to consider and dis pose of the appeal within a period of 2 months from the date of receipt of the o rder. In pursuance of the said order of this Court, the Principal Secretary to t he Department of Transport by order dated 05.08.2010 dismissed the appeal holdin g, inter alia, (cid:28)from the above, a needle of suspension points towards the petiti oner that he is a born Forgerer (cid:29).
Legal Reasoning
During the pendency of the disciplinary proceeding, the Transpor 03. t Department also lodged an ejahar with the Karimganj Police Station resulting i n arrest of the petitioner and he had to face regular trial. The petitioner has annexed a copy of the judgment dated 31.03.2012, passed by the learned Judicial Magistrate, First Class, Karimganj in GR Case No. 1072/2001, under section 409 I PC, whereby, it was held that the prosecution failed to establish the charge und er section 409 IPC against the present petitioner and he was, accordingly, acqui tted. The subject matter of the criminal proceeding and that of the departmental proceeding appears to be the same. 04.
Legal Reasoning
I have heard Dr. B Ahmed, learned counsel for the petitioner and Mr. U Rajbongshi, learned Standing Counsel Transport Department, Assam. 05. After hearing the learned counsel for the parties and on perusin g the materials on record, it appears that the disciplinary authority for a Chow kidar is the District Transport Officer. He himself lodged the ejahar against th e petitioner leading to his arrest and trial before the criminal court. He did n ot hold the enquiry and it is the appellate authority, namely Commissioner of Tr ansport himself issued the show cause notice to the petitioner furnishing a purp orted statement of allegation along with the list of documents and list of witne sses. The said letter dated 06.02.2002 does not contain the essential ingredient s as contemplated under Rule 9 of the Assam Services (Discipline and Appeal) Rul es, 1964. Neither in the letter dated 06.02.2002 nor five lines ’statement of al legations’ contains recital as to any specific incident. The allegations are vag ue and without material particulars. If the petitioner is charged with tampering with registration book, the statement of allegations ought to have contained de tails as on which date(s) had the petitioner committed the same so that he could have effectively put up his defence. One page enquiry report available on recor d, as produced by the learned Standing Counsel, Transport Department was submitt ed on 30.01.2003 by the District Transport Officer. Now, if the charge sheet was drawn by the Commissioner of Transport Department and the petitioner was asked to appear before the Commissioner, it is not clear as to how the District Transp ort Officer submitted the inquiry report. Mr. Rajbongshi submits that in fact, t he Assistant Commissioner of Transport Department held the inquiry. In that even t, report if there be any, ought to have been submitted by him. Now, the very pe rson, the District Transport Officer, who initiated the criminal proceeding agai nst the petitioner being the disciplinary authority and who even thereafter did not hold the disciplinary proceeding himself, submitted a purported inquiry repo rt. This report, therefore, is illegal and unauthorized. A report can be submitt ed by a person, who held the inquiry and not by anyone else. Besides, the so cal led Inquiry Report dated 30.01.2003 also does not contain any material particula rs. It does not indicate as to whether any witness far less the one mentioned in the list of witnesses were examined or not. The said Inquiry Report does not co ntain the particulars basing on which the District Transport Officer arrived at the conclusion that the petitioner had manipulated the registration certificates and/or have collected money from the Transport Operators. Abdul Mutlib, owner o f vehicle No.ML-04-1907 does not appear to have been examined. Really, the Inqui ry Report does not show that there is any evidence on record to arrive at the fi nding. It is to be held that there was no valid disciplinary proceeding against the petitioner. 06. The appellate order is equally unhappy. The appellate authority made no attempt to see as to whether the disciplinary proceeding was validly and duly conducted in compliance of Rule 9 of the Assam Services (Discipline & Appe al) Rules, 1964. In the absence of any evidence and that too without examination of the listed witnesses, the appellate authority has held the petitioner to be a ’born forgerer’. 07. Such comment on the part of a senior IAS Officer in the rank of Commissioner is not expected. Official correspondence, notes or even orders need to be temperate and decently worded. Nothing is available on records to justify the comment. No survey of activities of the delinquent employee to whatever gra de he may belong to, was made on objective basis. Not a witness was examined. No enquiry officer or presenting officer was appointed. 08. This being the position, the order of dismissal passed against t he petitioner and/or the appellate order passed thereon are liable to be set asi
Decision
de. The writ petition is, accordingly, allowed. The order, dismissing the petiti oner on 09.05.2003 and the appellate order dated 05.08.2010/11 are set aside. Th e petitioner shall be reinstated in service immediately with full back wages. Ho wever, the respondents shall be at liberty to initiate a full fledged inquiry ag ainst the petitioner, if so advised, but in any event, if any disciplinary proce eding is held, the same should be done strictly in accordance with the Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964. The writ petition is allo wed. No order as to costs.