Bidyut Buragohain v. Stat e of Assam)

#2. The petitioner presently serving as the Block Development Officer (BDO) in Pachim Nalbari Development Block, is aggrieved by Annexures -8 and 18 notific ations dated 20.11.2010 and 20.11.2010 respectively. By the first notification, while providing that the petitioner would continue to hold the office of the BDO in the same capacity, it has further been provided that he would continue to do so without any financial power. By the second notification, a second enquiry of ficer has been appointed to enquire into the charges brought against the petitio ner. such a course of action was adopted in view of the purported inconsistency in the report submitted by the earlier enquiry officer on conclusion of the enqu iry.

#3. The petitioner has also prayed for release of his salary for the period of 09.04.2008 to 04.05.2010. Another prayer made in this writ petition is to pro vide full salary in the revised scale of pay. The petitioner has also prayed for giving him full charge of the post being held by him.

#4. Annexure-18 notification dated 20.11.2010 was been issued in reference t o the departmental proceeding that was initiated against the petitioner vide mem orandum dated 31.12.2009. It appears that the enquiry was concluded and the enqu iry officer submitted his report. Being not satisfied with the said report, the Govt. of Assam in the Panchayat and Rural Development Department issued the not ification dated 20.11.2010 appointing another enquiry officer to enquire into th e charges on the ground of there being inconsistency in the report submitted on 06.10.2010 by the earlier enquiry officer.

#5. Learned counsel for the petitioner submits that once the enquiry was con cluded with furnishing of the report, the disciplinary authority could not have issued the impugned notification dated 20.11.2010 by appointing another enquiry officer to get the desired result. He also submits that such a course of action has been adopted by the disciplinary authority when it felt that the enquiry re port was not favourable to it. In this connection, he has placed reliance on the decision of this Court reported in 2005 (3) GLT 457 (Bidyut Buragohain vs. Stat e of Assam).

#6. As regards the non-payment of the revised scale and non-release of the s alary, learned counsel for the petitioner submits that there is no earthly reaso ns as to why the petitioner should be paid due salary in the revised scale of pa y. According to him, such a course of action means exploitation of labour. Mr. Upadhya, learned State counsel on the other hand submits that since 7. the petitioner was earlier placed under suspension and the said period of suspen sion is yet to be regularised, he could not be paid the revised scale of pay as he did not cross the efficiency bar. According to him, the de novo enquiry orde red by the impugned notification dated 20.11.2010 is permissible as per the prov isions of the Manual of the Departmental Proceeding.

#8. I have considered the submissions made by the learned counsel for the pa rties and have also gone through the entire records. In the counter affidavit fi led by the Govt. in the Panchayat and Rural Development Department through the D eputy Secretary on 08.08.2011, it was contended in paragraph-7 of the said affid avit that the petitioner was not allowed to handle the financial transactions si nce a departmental proceeding was pending against him. As regards the enquiry co nducted against the petitioner, it has been stated that since the enquiry report of State Enquiry Officer was found incomplete and having inconsistence, further enquiry was ordered through another enquiry officer. In paragraph-14 of the sai d affidavit, it has been contended that since a departmental proceeding is pend ing against the petitioner, fixation of pay cannot be allowed to him.

#9. The same very authority has filed another affidavit on 15.05.2012 reiter ating the same stand. As regards the plea of the petitioner that he has not been provided with sitting arrangement in the office, it has been stated that a well furnished chamber with comfortable sitting arrangement have been provided to th e petitioner. In paragraph-4 of the said affidavit, it has been stated that the petitioner was suspended in 1994 and reinstated in service on 28.07.1994. The sa id period having not been regularised, he could not be allowed to cross EB. Refe rring to second suspension on 27.07.1998 and reinstatement in service on 18.06.1 999, it has been stated that since a departmental proceeding is still pending, t he period cannot be regularised and consequently he cannot be paid his salary in the revised scale of pay. As regards the power to initiate fresh proceeding on conclusion of the earlier enquiry, it is stated that since the earlier enquiry r eport was found incomplete and inconsistent, further enquiry was ordered under t he provision of Chapter VI, para 6.18.1(2) of the Manual of Departmental Proceed ing.

#10. further enquiry is reproduced below: For a ready reference, the aforesaid provision on the subject of fresh/

6.18.1. Where the Disciplinary Authority, on a contention raised by the person p roceeded against or otherwise finds that any material irregularities have been c ommitted and they have caused or they may cause prejudice to the person charged or such irregularities are likely to vitiate the proceedings, it will consider. (1) whether the whole enquiry should be set aside and a fresh enquiry started de novo; or (2) whether the enquiry be set aside from the stage of occurrence of the irregul arity and it be ordered to be started afresh from that particular stage.

8.18.2 As far as possible, where ends of justice can be served and so long as t he person proceeded against is given reasonable opportunity of being heard, effo rts should be made to resume the enquiry from the stage at which the irregularit y occurred. (cid:29)

#11. The aforesaid provision is applicable only when the disciplinary authori ty finds that any material irregularity has been committed and the same might ca use prejudice to the persons charged or such irregularity are likely to vitiate the proceeding. It is only in such circumstances, it is to be considered as to whether the whole enquiry shall be set aside or fresh enquiry should be initiate d de novo.

#12. From the above, what is seen is that the aforesaid provision for fresh/f urther enquiry has been made to remove any prejudice caused to the officer again st whom the proceeding is initiated. Even otherwise also, the said provision can not override the provision of Assam Services (Discipline & Appeal) Rules, 1964. Rule 9 of the said Rules laying down the detailed procedure for imposing penalti es, provides that on the conclusion of the enquiry, the enquiring authority sha ll prepare the enquiry report and the disciplinary authority would consider the same towards recording its own findings on each charge. There is no provision fo r remanding the matter back to the enquiring authority, more particularly on the ground of there being inconsistencies in the report, as indicated in the impugn ed notification dated 20.22.2010 (Annexure-18).

#13. There is also no indication in the impugned notification that the discip linary authority considered the report in reference to the charges and came to a ny conclusion. Only finding recorded in the notification is that the report is i ncomplete and inconsistent. If the course of action adopted by the respondent/di sciplinary authority by issuing the impugned notification is allowed to stand, s ame will cause serious prejudice to the delinquent officer. On each and every oc casion it will be the tendency of the disciplinary authority to remand the matte r back to another enquiry officer, if it finds that the enquiry report is not f avourable to it.

#14. In the instant case, the disciplinary authority after recording that th ere are inconsistencies in the report submitted by the enquiring authority on 0 6.10.2010, took recourse to the provision of the aforesaid Manual by appointing another enquiry officer to enquire into the charges, as if it is determined to g et favourable report.

#15. As regards the Annexure-8 notification dated 04.05.2010 by which the pet itioner was directed to hold the post of BDO in the same capacity without financ ial power, as per the affidavit in opposition filed by the respondents, same was taken recourse to in view of the pendency of the departmental proceeding agains t the petitioner. In view of my opinion that the impugned Annexure-18 notificat ion dated 20.11.2010 directing fresh enquiry against the petitioner is not susta inable in law, the authority will have to consider as to whether divesting the petitioner from the financial power and to be precise with the duties and functi ons attached to the post of BDO is still to continue or not.

#16. As regards the payment of salary for the period from 09.04.2008 to 04.05 .2008, if the petitioner worked for the said period, the respondents cannot den y him salary for the said period.

#17. If the petitioner was placed under suspension and thereafter reinstated in service, a duty was cast on the disciplinary authority to regularise the said period of suspension. Since the subsequent enquiry ordered by the notification dated 20.11.2010 has been interfered with, direction is issued to the disciplina ry authority to pass appropriate order towards regularisation of the period of s uspension. As regards the earlier period of suspension mentioned in the affidavi t filed on 15.05.2012, there being no appropriate proceeding pertaining to the s ame, the authority shall now pass appropriate order regularising the period of s uspension.

#18. The writ petition is allowed by setting aside and quashing the impugned noti fication dated 20.11.2010 (Annexure-18). The respondents shall now pass appropri ate orders in respect of regularisation of the periods of suspension of the peti tioner and payment of salary for the said period, payment of revised pay and sha ll also consider as to whether in view of these developments the petitioner is e ntitled to get full charge of the post of BDO presently being held by him. The r espondents shall pass appropriate orders consistently with the above directions and observations as expeditiously as possible, preferably on or before 30.06.201 2.

#19. Writ petitioner is allowed. There shall be no order as to costs.