High Court
Case Details
WP(C) 4759/2012 BEFORE HON’BLE MR JUSTICE B.K. SHARMA JUDGMENT AND ORDER (ORAL)
Legal Reasoning
1. This writ petition was filed by the petitioner challenging the e nquiry proceeding that was initiated against him vide memorandum of charge sheet dated 24.05.2012. During the pendency of the writ petition, the said proceeding has come to an end and the petitioner has been imposed with the penalty of dism issal from service vide order dated 20.11.2012 (Annexure-3 to the affidavit in o pposition). The petitioner was first appointed as Assistant Professor of Zoo 2. logy in Barama College in the year 2007. While he was serving as such in a non s anctioned post, he was offered Senior Research Fellowship (Fishery) by the Centr al Inland Fishery Research Institute (ICAR), Kolkata, vide Annexure-B memorandum dated 23.10.2010. As per the terms of the said fellowship, his place of posting was at Regional Centre of Central Inland Fisheries Research Institute, Guwahati . The fellowship was up to 31.03.2011 with consolidated fellowship of ‘ 12,000/- per month plus HRA. 3. According to the petitioner, he was allowed to join the project vide Annexure-A certificate dated 25.09.2010 purportedly issued by the Principal of the College. As per the certificate, the Principal of the college had allowe d him to join the fellowship. 4. By Annexure-C communication dated 04.01.2011, the petitioner was asked to show cause in respect of his absence from duty for 17 days out of 25 w orking days in the month of December, 2010. It was also intimated that the petit ioner remained absent till the date of issuance of the communication. In reply t o the said show cause notice, the petitioner vide his letter dated Nil intimated that he could not attend duty for certain days in the month of December, 2010 f or unavoidable circumstances. It was also intimated that in the meantime he was selected for the fellowship and that he should be allowed to continue with the f ellowship. The aforesaid show cause notice was followed by another show cau 5. se notice dated 12.02.2011 (Annexure-E), by which the petitioner was intimated t hat he was not allowed to pursue the project by the Governing Body of the Colleg e and that he had joined the fellowship without any permission from the College authority. In response to the said show cause notice, the petitioner vide his An nexure-F letter dated Nil while not denying the allegation, however, contended that he is a follower of Swami Vivekananda and Lord Krishna and that he believed in work culture. 6.
Decision
By Annexure-G communication dated 15.07.2011, the petitioner was once again apprised of his unauthorised absence and he was requested to acknowl edge the same making a grievance against which the petitioner had approached thi s Court by filing a writ petition being WP(C) No. 3660/2011, which was entertain ed vide order dated 22.07.2011. The impugned letter dated 15.07.2011, having bee n stayed, no progress could be made on the basis of the said letter. Eventually the letter was withdrawn and consequently the writ petition was also disposed of . 7. After the aforesaid developments, the petitioner was issued with the Annexure-J Charge sheet dated 24.05.2012 levelling as many as four charges relating to unauthorised absence; joining the fellowship under ICAR without the required permission of the college authority and by producing the forged certifi cate referred to above; misconduct by not attending classes and remaining absent unauthorisedly all through out with false undertaking to attend classes as well as installing finger impression in the Bio-Matrix Machine after the interim ord er of this Court and misbehaving with the Principal-in-Charge of the College amo unting to insubordination and misconduct. In response to the charge sheet, the petitioner by his reply dat 8. ed 09.06.2012 (Annexure-K) while virtually admitting the charge of unauthorised absence, however, contended that he was absent for some period due to attending Research Fellowship, for which he had obtained written permission from the earli er Principal. He also admitted that for certain period he did not put his signat ure in the Attendance Register in view of pendency of the earlier writ petition. As regards the allegation of the certificate being fake, his reply was that he cannot be faulted with if the records do not indicate issuance of the said certi ficate by the earlier Principal. 9. After forming the opinion to conduct an enquiry on the basis of the materials on record, the petitioner was issued with notice of enquiry on num ber of occasions, but he did not respond to the proceeding. However, it is on re cord that on a particular date he had appeared before the Enquiry Committee and after remaining present before the Enquiry Committee for a while, left the place . There was similar repeatation on the second occasion also. Although the Enquir y Committee had informed him that the enquiry would proceed Ex-parte in his abse nce, the petitioner did not pay any heed to the said warning. Situated thus, the Enquiry Committee had no other option then to proceed Ex-parte against the peti tioner. Based on the Enquiry Report, the Governing Body of the College adopted r esolution towards dismissal of the petitioner from service and accordingly the s ame was conveyed to him vide the Annexure-3 letter dated 20.11.2012 annexed to t he counter affidavit. 10. Mr. D.M. Thakuria, learned counsel for the petitioner has veheme ntly argued that the petitioner’s absence from the college being beyond his cont rol and he being a victim of the circumstances, the same is required to be condo ned. He submits that the enquiry proceeding having been conducted in a perfuncto ry manner, the same is not sustainable in law. 11. Countering the above argument, Mr. B. Choudhury, learned counsel representing the College authority, submits that all reasonable opportunities h aving been provided to the petitioner to participate in the enquiry, if he had c hosen not to avail the same, the petitioner will have to thank himself. He submi ts that the petitioner having admitted the charge of unauthorised absence, on th at ground alone, the order of dismissal from service is required to be upheld. 12. Both Mr. N. Sharma, learned Standing Counsel, Education Departme nt and Mr. S. Khaund, learned Standing Counsel, BTC have adopted the argument of Mr. B. Choudhury, learned counsel, representing the College Authority. They sub mit that the facts narrated above would speak for themselves and that it is not a case of taking any other view other than the view taken by the Governing Body of the College. 13. er are quoted below:- (cid:28)1. That you remained absent in your service of Assistant Professor, Department of Zoology (Non-Provincialised Science Stream), Barama College unauthorised as n o permission has been obtained from the Governing Body of the college. You remai ned absent for the period of 17 days out of 25 working days in the month of Dece mber, 2010 as per the record of the morning shift attendance register. You remai ned absent for the whole month of December, 2010 as per the record of evening sh ift attendance register except one day, that day too, you remained absent as per the record of the morning shift. In the month of January, 2011, you remained to tally absent unauthorised. In the month of February, 2011, you were absent all a long except the day of 28th February. In the month of March, 2011, though there were a couple of signatures in the morning shift register, you remained absent f or the whole month except two days as per the record of the evening shift regist er. Likewise, you were found absent unauthorised for the whole months of April a nd May, 2011 as per the record of evening shift attendance except a few signatur es found in the morning shift record. Not only that, you were found absent all a long except a few days appearance in the college for a couple of minutes in the morning shift starting from the months of November/December, 2010 to the month o f May, 2012 is quite unbecoming for an Assistant Professor of the Department of Zoology (under non-provincialised science stream) of Barama College and which ar e gross misconduct, insubordination and negligence of duty in the event of provi ng the same against you. 2. That you have joined in the course of Fellowship under ICAR at Central Inland For a ready reference, the charges levelled against the petition Fisheries Research Institute without permission from the college authority and further you submitted a fraudulent letter containing permission dated 25-09-2010 of the former Principal of Barama College. So far joining in the project, you w ere drawing salaries from both the college for the period of your unauthorised a bsence and from the Central Inland Fisheries Research Institute by making fraud and which is unbecoming in part of an Assistant Professor of the Department of Z oology (Non-Provincialised Science Stream) of Barama College and gross misconduc t in the event of proving the same against you. 3.That you have misconducted by not attending classes and by remaining absent un authorised throughout even after giving undertaking to the college authority to attend the classes as well as installing your finger impression in the Bio-Matri x Machine after the interim order of the Honourable Gauhati High Court which is sheer disobedience and misconduct as an Assistant Professor of Zoology Departmen t (Non-Provincialised Science Stream) of Barama College. 4.That after the interim order issued by the honourable Gauhati High Court, you had gone to the college at 22nd August, 2011 and misbehaved the Principal-in-Cha rge using harsh words in presence of his subordinate employees while demanding a copy of the selection list of the contractual teachers of the college that did not come under his purview. This is an act of severe misconduct and insubordinat ion in part of an Assistant Professor of Zoology Department (Non-Provincialised Stream) of Barama College. (cid:29) 14. As to what was the reply of the petitioner has been noted above. In paragraph-3 of the reply, he admitted that he was absent for certain periods . But he had shown excuse for the same by contending that he had joined the Rese arch Fellowship. If he was an employee of the respondent college, he could not h ave availed of the fellowship without the written permission of the Governing Bo dy of the College. A mere certificate, even if believed to be true, issued by th e Principal of the College, could not have conferred any right on him to underta ke another engagement simultaneously. That apart, the petitioner himself admitte d in the reply that he did not put signature in the Attendance Register regularl y as he had filed the Writ Petition being WP(C) No.3660/2011, challenging the le tter dated 15.07.2011 referred to above. If he was aggrieved by the particular l etter of the College authority, he was within his right to challenge the same, b ut the same did not cloth him with any right not to attend classes. In the reply , another plea taken by him was that the subsequent period after filing of the s aid Writ Petition could not have been treated as unauthorised absence. Such a pl ea on the part of the petitioner, a Lecturer of a College is not acceptable. 15. Prior to the issuance of the Charge sheet, the petitioner was re peatedly informed of his conduct of unauthorised absence and he was requested to attend classes, but he did not pay any heed to the said request. On perusal of the enquiry report, it is found that the Enquiry Committee took into account all the relevant aspects of the matter and on the basis of the oral and documentary evidence, found all the charges established against the petitioner. Unauthorise d absence on the part of the petitioner, coupled with his misbehaviour to the Pr incipal of the College are very serious charges and cannot be viewed leniently. The Enquiry Committee found on the basis of the corroborative evidence on record that all the charges levelled against the petitioner stood established in the e nquiry. Thereafter, the Governing Body of the College upon a detail discussion o n the entire materials on record, decided to impose the penalty of dismissal fro m service. I see no reason to interfere with the same. 16. Mr. Thakuria, learned counsel for the petitioner, submits that i n case of dismissal from service, the petitioner may not be entitled to get any future employment. Considering the matter in its entirety, it is hereby provided th 17. at the dismissal of the petitioner from the non sanctioned post will not stand o n his way for absorption and or appointment elsewhere and accordingly the impugn ed order of dismissal shall be read as order of removal from service. 18. Writ petition is disposed of accordingly.