THE CHIEF ENGINEER WATER RESOURCE DEPTT. CHANDMARI, GUWAHATI, ASSAM v. SANJAY KUMAR DAS AND 4 ORS

Advocate for the Petitioner : MR. N GOSWAMI Advocate for the Respondent : MR B D DAS Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

20.09.2022 ORDER Heard Shri B. Goswami, learned Additional Advocate General, Assam for the review applicant. Also heard Shri D. Kalita, learned counsel for the opposite party / writ petitioner, who has been arrayed as the respondent no. 1.

By this application filed under Order XLVII Rule 1 of the CPC, review has been sought for in respect of an order dated 24.06.2022 passed by this Court in WP(C)/1151/2022.

The subject matter of the writ petition was a Disciplinary Proceeding which had culminated in an order dated 14.02.2022 by which the petitioner was imposed the penalty of demotion in his service by 2 ranks / stages from the post of Divisional Head Assistant to Lower Division Assistant. Amongst other grounds, the principal ground was that along with the report of the enquiry, the order of penalty was also issued on

14.02.2022. The opposite party / writ petitioner had pleaded that apart from their being gross infraction of the law holding the field of Disciplinary Proceeding, the opposite party delinquent was deprived of a reasonable opportunity to show cause against the Enquiry Report and pursuance the Disciplinary Authority to take a view against the findings of the Enquiry Report.

At the time of hearing of the case, the said illegality having been noticed by the Court there was a consensus amongst the parties to the litigation that on the ground of non-furnishing of the report of the Enquiry Officer, the order of penalty be set aside Page No.# 3/5 but while doing so, the matter may be remanded to the authorities leaving it to the discretion of the authority to proceed from the stage of obtaining a response from the opposite party delinquent to the report of the Enquiry Officer.

This Court while remanding the matter had however made an observation that since an authority had already taken a decision by application of mind, in case the Department wishes to go ahead with the matter, the Disciplinary Authority has to be a different entity of the same rank. It is the last observation against which the present application for review has been filed.

Shri Goswami, the learned counsel, by drawing the attention of this Court to the Assam Services (Discipline and Appeal) Rules, 1964 has submitted that under Rule 2(b) Appointing Authority has been defined and under Rule 2(d) Disciplinary Authority has been defined. As per the said Rules, “Appointing Authority” means the authority empowered to appoint a Government Servant to the post which he is holding at that time and the “Disciplinary Authority” in relation to the imposition of a penalty means the authority competent under the Rules to impose such penalty. Reference has also been made to the Schedule to the Rules in which under entry 82, pertaining to all Non-Gazetted staff in the district and Sub-Divisional offices under other Heads of the Department, the Appointing Authority is the Head of the Office. It is submitted that when the Rules prescribe a particular Disciplinary Authority there cannot be any direction to have a different Disciplinary Authority and that might amount to transgressing the domain of legislation. Shri Goswami further clarifies that the Executive Engineer of the Division is the Disciplinary Authority, Appointing Authority and Head of Office, so far as the petitioner is concerned.

Shri Goswami, learned Additional Advocate General makes it clear that it is only on the point as to who would be the Disciplinary Authority, the present review has been preferred.

Shri Kalita, learned counsel for the opposite party / writ petitioner has Page No.# 4/5 submitted that by the observation made by this Court, no prejudice is going to be caused to the Department and it is only for maintaining a far play in the administrative action that the observation has been made.

Though the present application has been structured in the form of a review, the prayer is more like seeking a clarification of the order passed earlier. The grounds for review, as indicated above, is that there is one Executive Engineer in the Division, who as per the Rules holding the field is the Disciplinary Authority so far as the service of the opposite party / writ petitioner delinquent is concerned. However, what this Court had intended by the observation made in the last part of the order is that since one authority had already applied his mind and has also passed an order of penalty which was interfered with and the matter remanded back, will it be proper for the said authority to re-examine the matter. This Court makes it clear that the only object and purpose of making the last observation to have the matter decided afresh by a different individual holding the same rank as the said individual need not be personally acquainted with the facts and circumstances of the case and would only take a decision as per the records made available before him. The records in the instant case, would be the records of the Disciplinary Proceeding starting from the show cause, written statement, deposition, if any and the Enquiry Report. All the aforesaid materials which should be placed before the Disciplinary Authority would otherwise also be placed for the first time as the Authority as all previous actions were under the aegis of the Enquiry Officer in which the Disciplinary Authority will not have any role. The Disciplinary Authority is in the position of a Judge, who would have to give a decision based on the materials on record and not his personal opinion. The observation made in the order was only to ensure that there should be fair play in administrative action and the said observation appears to have been wholly misconceived and not understood correctly by the authorities. This Court had clearly observed that the new Disciplinary Authority can be of the same rank as required by the Rules.

In view of the above, the present application for review is rejected. Page No.# 5/5 JUDGE Comparing Assistant