Gauhati High Court
Yebemo Mozhui vs Mr A. Renbi Mozhui & Ors on 27 July, 2016
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Appeal No.283/2012
1. Mr. Yebemo Mozhui,
Office Peon,
Office of the Sub-Divisional Information Officer, Bhandari,
District : Wokha, Nagaland.
...... Appellant.
-Versus-
1. Mr. A. Renbi Mozhui,
S/o. Mr. Anithung Mozhui,
Resident of Bhandari Village,
District : Wokha, Nagaland.
2. The State of Nagaland,
Represented by the Chief Secretary, Govt. of Nagaland,
Department of Information & Public Relations,
Kohima, Nagaland.
3. The Commissioner & Secretary to the Govt. of Nagaland,
Department of Information & Public Relations,
Kohima, Nagaland.
4. The Director,
Directorate of Information & Public Relations,
Kohima, Nagaland.
.... Respondents.
BEFORE
HON'BLE MR. JUSTICE HRISHIKESH ROY
HON'BLE MR. JUSTICE L.S. JAMIR
For the Appellant: Mr. K. Goswami,
Mr. R. R. Kaushik,
Mr. R. Kaman &
Mr. S. Sarma, Advocates.
For the Respondent Nos.2--4: Ms. T. Khro, Sr. Govt. Advocate, Nagaland.
For the Respondent No.1: Mr. P. Khataniar &
Ms. A. Choudhury, Advocates.
Date of hearing & judgment: 27.07.2016.
JUDGEMENT AND ORDER (ORAL)
(Hrishikesh Roy, J) Heard Mr. K. Goswami, the learned counsel appearing for the appellant. Also heard Mr. P. Khataniar, the learned counsel appearing for the respondent No.1 (writ petitioner). Ms. T. Khro, the learned senior Govt. Advocate appears for the State Authorities of Nagaland.
W.A. No.283/2012 Page 1 of 82. The appointment of the appellant (4th respondent) as a office peon in the Office of the Sub-Divisional Information Officer, Bhandari in Okha District of Nagaland, ordered on 5.4.2011, was the subject matter of challenge in the W.P.(C) No.192(K)/2011. The Bhandari Civil Sub-Division Office in Okha District was constructed on land donated by the writ petitioner's family and accordingly preferential right of appointment was claimed by the family member of the land donors and on that basis, the challenge was made to the appointment order dated 5.4.2011, whereby the appellant Yebemo Mozhui was appointed to the peon's post.
3. The learned Single Judge opined that the appointment of the 4th respondent was not in accordance with the existing norms and he was appointed at the behest of the Parliamentary Secretary. Thus the impugned order of appointment dated 5.4.2011 was quashed. Consequential direction was issued to the Sub-Divisional Information Officer, Bhandari to invite application from all interested eligible persons including the candidature from the land donors' family, for the purpose of selection and appointment to the post in question by allowing the writ petition on 31.7.2012 (Annexure-5).
4. Aggrieved by cancellation of his appointment ordered by the learned Single Judge, the 4th respondent has filed this Appeal. In the counter affidavit filed in the Writ Appeal by the State respondents on 18.12.2013, it is reflected that in pursuant to the direction given by the Writ Court, the service of the appellant (4th respondent) was terminated on 25.9.2012 and on the same date, the writ petitioner A. R. Mozhui was appointed, in the resultant vacancy.
5. Mr. K. Goswami, the learned counsel reads the impugned judgment to contend that fair opportunity to all interested candidates was required to be provided and appointment was to be made through a selection exercise amongst the applicants. The appellant's lawyer projects that equal opportunity was never provided but steps were taken to facilitate filing of application only by the writ petitioner, as can be seen from the communication dated 5.9.2012, of the Director of Information and Public Relation, Nagaland.
6. Representing the respondent (writ petitioner), Mr. P. Khataniar, the learned counsel submits that the Division Bench through the order dated 16.10.2012 has stayed the appointment of the respondent (writ petitioner), made on 25.9.2012 and therefore he submits that the post of the peon is now vacant.
W.A. No.283/2012 Page 2 of 87. Appearing for the State authorities, Ms. T. Khro, the learned senior Govt. Advocate submits that under the judgment passed in the W.P.(C) No.192(K)/2011, the post of peon is required to be filled up by providing due opportunities to all interested persons. But in the instant case, it is apparent that fair chance was not provided to everyone but only to the writ petitioner. She submits that this was on account of the failure of the local officer at Bhandari to invite applications from all concerned and the Sub-Divisional Information Officer might have been misled by the written communication dated 5.9.2012 of the Director, Information and Public Relation.
8. We have considered the purport of the judgment dated 31.7.2011 (Annexure-5), in the W.P. (C) No.192(K)/2011, impugned before us. The submission of the rival counsel have also been taken into account. The post of peon in the office of the Sub-Divisional Information Officer, Bhandari is required to be filled up through a competitive process, in terms of the impugned judgment but here it is apparent that fair and equal opportunity was not provided to facilitate participation of all interested applicants. Noticing the illegal process, this Court on 16.10.2012 has stayed the appointment of the respondent (writ petitioner).
9. As we find no infirmity with the conclusion and reasoning in the judgment dated 31.7.2012 (Annexure-5), in the W.P. (C) No.192(K)/2011, we affirm the said judgment. According to us the respondent (writ petitioner) A. R. Mozhui was unjustly appointed on 25.9.2012 and this was inconsistent with the judgment under Appeal and accordingly the same is quashed. Hence we direct as follows:-
The Sub-Divisional Information Officer, Bhandari shall invite applications from all eligible candidates including from the family members of the land donors families of the area concerned for the purpose of selection and appointment amongst them to the post in question. Until the selected person is appointed, the appellant (respondent No.4) shall be allowed to continue in service. It is ordered accordingly.
10. With the above order, the case stands disposed of. No Cost.
JUDGE JUDGE Barman. W.A. No.283/2012 Page 3 of 8 WP(C) No. 1013 of 2011 BEFORE HON'BLE MR. JUSTICE HRISHIKESH ROY HON'BLE MR. JUSTICE L.S. JAMIR :: O R D E R :: 28-07-2016 (Hrishikesh Roy, J)
Heard Ms. U Dutta, the learned counsel appearing for the petitioner. Also heard Mr. SC Keyal, the learned Assistant Solicitor General of India, appearing for the respondents.
The challenge here is to the order dated 16-12-2009 (Annexure-A) in the Original Application No. 121 of 2006 whereby the learned Central Administrative Tribunal dismissed the original application wherein he challenged the orders passed in the disciplinary proceeding.
At the relevant time, the respondent was posted as the Assistant Field Officer(T) in the Special Bureau of Government of India and when he addressed a representation dated 12-05-1997 (Page-85) by normal post, disclosing information relating to functioning of the intelligence organization, he was charged with conduct unbecoming of a Government servant of an office in the intelligence organization and accordingly the charge memo dated 02-01-1998 (Annexure-14) was issued under Rule 3(1)(iii) of the CCS (Conduct) Rules, 1964 (hereinafter referred to as 'the CCS Rules'). The article of charge being relevant, are extracted hereinbelow for ready reference:
"MEMORANDUM The substance of the Annual Confidential Report for the period from 1/4/97 to 31/3/98 on you is as W.A. No.283/2012 Page 4 of 8 The petitioner was serving in the Special Bureau, which is an intelligence organization established by the Central Government for the purpose of intelligence or counter-intelligence work.
Under the Intelligence Organization (Restrict of Rights) Act, 1985 (hereinafter referred to as 'the 1985 Act'), the members of such organization are prohibited from communicating with any person on matters relating to functioning, structure, personal or organizational affairs of the organization of which he is a member. In his representation for exemption from the assigned duties addressed to the Secretary, the petitioner disclosed sensitive information on the functioning of the organization and accordingly the charge related to the unbecoming conduct of a member of the intelligence organization.
An Enquiry Officer was appointed to enquire into the charge and the petitioner participated in the inquiry where he primarily focused on the assigned duties outside the status and/or schedule attached to the post of Assistant Field Officer. Sending of the communication dated 12-05-1997 by ordinary post was not challenged and eventually the Enquiry Officer, in his report, gave a guilty finding against the delinquent under Rule 3(3) of the CCS Rules read with Official Secret Act, 1923 and the 1985 Act.
When the charge was found to have been established, the disciplinary authority opined that had the copy of the representation dated 12-05-1997 would have been fallen into the hands of some unscrupulous elements during the postal transit, it would have caused serious prejudice to the security of the army W.A. No.283/2012 Page 5 of 8 and embarrassment for the Government. Since sensitive information relating to personnel and functioning of the organization was disclosed in the representation, in breach of the restricting imposed on members of the intelligence organization. Although the breach was construed to be serious, taking lenient view for a first time offender, the penalty of Censure, under Rule 15 (3) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 was imposed by the disciplinary authority on 02-03-2005 (Annexure-31).
The resultant appeal filed by the delinquent was rejected by the appellate authority on 25-07-2005 (Annexure-33) and the revising authority through his impugned order dated 03-05-2006 (Annexure-36) upheld the penalty and dismissed the revision.
The orders passed in the disciplinary proceedings were put to challenge through the Original Application No. 121/2006 filed under Section 19 of the Administrative Tribunal's Act, 1995.
In support of his challenge, the delinquent contended that he was recruited as Assistant Field Officer and therefore, he cannot be compelled to function any other tasks except the one related to the telecommunication cadre. He also contended that he was punished twice for the same lapse as earlier he was punished for his failure to undertake the assigned task. He was given the punishment of dies non for the concerned period.
On the other hand, the respondents contended that the delinquent was given lenient punishment of Censure despite the serious implication of the breach committed by him. It was further contended that judicial review in a disciplinary proceeding would W.A. No.283/2012 Page 6 of 8 be limited to notice the fairness of the inquiry and there cannot be a re-appreciation of the evidence.
The learned Tribunal referred to the contents of the representation of the delinquent addressed through normal postal channel, the learned Tribunal noted that in his postal communication, the delinquent conspicuously mentioned the exact nature of duties and the names of personnel posted in the organization and such information are sensitive information for an intelligence organization. Thus, it was observed that the Inquiry Officer considered the contents of the representation dated 12- 05-1997 and reached his conclusion on the charge leveled against the member of an intelligence organization. The Tribunal took the view that appropriate reasons are disclosed in the order passed by the disciplinary authority, the appellate authority as well as the revisional authority and it was a case of adequate evidence available on record to establish the delinquent's unbecoming conduct. Thus, applying the principle of preponderance of probability on the basis of materials available on record and noticing that the proceeding before the Tribunal has no relation to the issue to the mistake leading of treatment of certain period as dies non, intervention with the disciplinary proceeding was not found justified. According to the assessment of the Tribunal, all procedural formalities were adhered to and there is no breach of principle of natural justice as delinquent was accorded with reasonable opportunity of hearing in the proceeding. Thus, the original application was found devoid of merit and the same was dismissed.W.A. No.283/2012 Page 7 of 8
The power of judicial review in a disciplinary proceeding is intended to examine the manner in which the decision is made and to ensure that the individual receives fair treatment and to determine that conclusions, which were reached were based on some materials. When the conclusions are supported by relevant materials, it is competent for the disciplinary authority to hold the delinquent guilty of the charge. In a challenge to the disciplinary proceeding, the Tribunal does not act as an appellate authority to re-appreciate the evidence or to arrive at his own independent conclusions.
We find from the discussion made by the learned Tribunal that a fair scrutiny of the disciplinary proceeding was made and satisfaction was reached on adherence to statutory Rules prescribing the mode of inquiry.
In the above facts, we find that the refusal of the Tribunal to interfere with the penalty is found to be reasonable. Therefore, we see no scope to entertain this challenge by a delinquent, who, in fact, has been treated leniently by the disciplinary authority. Consequently, this case is found devoid of merit and the same is accordingly dismissed by leaving the parties to bear their respective costs.
JUDGE JUDGE
Paul
W.A. No.283/2012 Page 8 of 8