Gauhati High Court
Sri Anil Kumar Mahanta vs The State Of Assam & 7 Ors on 21 March, 2016
Author: T. Vaiphei
Bench: T. Vaiphei
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM &
ARUNACHAL PRADESH)
WRIT APPEAL 417/2015
Sri Anil Kumar Mahanta
S/o. Late Joydev Mahanta,
R/o.-Village - Gotanga,
P.O.-Balipukhuri Tinali,
P.S.-Tezpur,
District-Sonitpur, Assam,
PIN - 784001.
.... APPELLANT
-versus-
1. The State of Assam
Represented by the Commissioner & Secretary
to the Government of Assam,
Handloom & Textile Department,
Dispur, Guwahati - 781006 (Assam).
2. The Director,
Handloom & Textiles, Assam,
Guwahati - 781005 (Assam).
3. The Joint Director
Handloom & Textiles, Assam,
Guwahati - 781005 (Assam).
4. The Asst. Director
Handloom & Textiles,
Presenting Officer, Sonitpur, Tezpur (Assam)
PIN - 784001.
5. The Asstt. Director
Handloom & Textiles,
Lakhimpur (Assam).
6. The Superintendent
Handloom & Textiles,
North Salmara, Abhayapuri (Assam).
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7. The Superintendent
Handloom & Textiles,
Tinsukia (Assam).
8. Sri J.N. Saikia
Inquiry Officer/Deputy Director,
Handloom & Textiles, Assam,
Guwahati - 781005.
....RESPONDENTS
BEFORE HON'BLE MR. JUSTICE T. VAIPHEI HON'BLE MR. JUSTICE MANOJIT BHUYAN Advocates for appellant :: Mr. D.C.K. Hazarika Ms. J. Kalita Advocates for the Respondents:: Ms. B. Gogoi, GA, Assam Date of hearing :: 17.03.2016 Date of delivery of Judgment ::
JUDGMENT & ORDER (CAV) (Manojit Bhuyan, J)
1. It hardly needs reiteration that on a challenge to disciplinary proceedings, the High Court does not act as a appellate authority and its power of judicial review is circumscribed by only making interference in a case ex-facie disclosing element of perversity in the proceedings and in a case based on no evidence or where manifest injustice has been caused to the person concerned on account of violation of the principles of natural justice.
The conspicuous presence of the fundamental defects in the proceedings would allow the Court to make interference.
32. Touching upon the basic facts of the case, the appellant/writ petitioner while serving as Junior Inspector/Auditor (Co-operative) under the Directorate of Handloom & Textile was served with the Notice dated 29.12.1988 inviting explanation to his unsatisfactory performance and frequent absence from duty which had resulted in his failing to achieve the audit targets of the Co- operative Societies within his jurisdiction. In the said Notice it was also indicated that failing to provide a satisfactory explanation, disciplinary proceedings would be drawn-up. The appellant did not provide any explanation and instead submitted a letter indicating that without furnishing the copies of the allegations he was not in a position to give a reply. On 25.01.1989 an order was issued transferring the petitioner from Tezpur to North Lakhimpur, followed by a release letter dated 06.02.1989. The appellant had sought for stay of the transfer order which was rejected and in the mean time the Relieving Officer also reported for duty at Tezpur. The appellant neither moved to Lakhimpur nor acknowledged the release order. The defiance on the part of the appellant prompted the respondent authorities to place him under suspension pending drawal of disciplinary proceedings by Order dated 29.11.1989. In course of time the appellant was served with the Statement of Allegations and the charges framed against him were in respect of insubordination, dereliction of duty and disobedience of the order of the superior authority. A Show Cause Notice under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 was issued in this respect and the appellant was asked to show cause and/or to submit his written statement of defence within 10(ten) days. In the said Notice it was also indicated that upon appointment of an Inquiry Officer he would be given all opportunity to defend the charges and to present his case with the assistance of an officer of his choice.
3. Thereafter, the appellant by his letter dated 18.05.1990 had requested the Director for furnishing the relevant documents. Pursuant thereto, the joint Director issued a letter dated 21.07.1990 informing the appellant that in terms of Rule 9(3) of the 1964 Rules, he may inspect the relevant documents and 4 take extracts, fixing 07.08.1990 as the date for inspection and taking extracts in the Office of the Director of Handloom & Textile.
4. As appearing from the materials on record, the appellant did not avail the opportunity to inspect the documents and also did not submit any reply to the Show Cause Notice/Charge Memo. An Inquiry Officer was appointed and departmental proceeding was initiated with Notice to the appellant to appear before him on 10.06.1992 and 11.06.1992. As the appellant failed to appear on the said dates, the enquiry was rescheduled to 07.10.2004. However, there was no participation of the appellant.
5. The departmental proceeding concluded and the Report of the Inquiry Officer was furnished whereof the disciplinary authority by its Order dated 03.08.2006 imposed the following penalties.
"1. The 1st period of suspension i.e. from 29.11.1989 to 29.08.1999 is hereby treated as non duty.
2. The 2nd period of suspension i.e. from 14.7.2000 to 12.5.2004 is hereby treated as on duty.
3. Two increment without cumulative effect is to be deducted from his salary as penalty for gross disobedience of negligence of duty."
6. Challenging the proceedings and the punishment imposed upon him, the appellant as the writ petitioner had instituted WP(C) 5957/2007. The grounds of challenge were that the relevant documents were not furnished to him and he was also denied the opportunity of defence. Also, the fact that the complainant who was instrumental in the initiation of the departmental proceedings having been made the Presenting Officer, the same had vitiated the entire process. A further ground was taken that the Assistant Director/Presenting Officer having arranged the accommodation of the Inquiry Officer at Tezpur, this was more the reason that an adverse/ bias finding was rendered by the Inquiry Officer. As regards the penalty of treating the first suspension period from 29.11.1989 to 29.08.1999 as "non-duty" period is concerned, the submission was that the same could not have been done in 5 view of the fact that the appellant was reinstated in service upon the suspension order dated 28.10.1997 being revoked.
7. Before the learned Single Judge the learned Government Advocate had contended that the appellant never responded to the charges and also did not participate in the proceedings despite due notice. It was also contended that the findings of the Inquiry Officer did not call for interference at the instance of the appellant who had apparently failed to defend the charges.
8. On the above facts, the question required to be answered by the learned Single Judge was as to whether the disciplinary proceedings stood vitiated on account of any procedural irregularity and whether any manifest injustice had been caused to the appellant. While rendering the judgment, the learned Single Judge took notice of the fact that opportunity afforded to the appellant to inspect the documents and also to take extracts had not been availed of. Also, the appellant had neither responded to the allegations/charges despite due notices. Accordingly, the allegation of denial of reasonable opportunity to defend was negated by the learned Single Judge.
9. As regards the allegation of the complainant being appointed as the Presenting Officer, a finding was made to the effect that when the Rules do not bar such appointment and the petitioner not having questioned the legality or fairness of the proceedings at any stage, the same would not result in the enquiry being vitiated. As regards the arrangement made by the Asst. Director for accommodation of the Inquiry Officer at Tezpur, it was answered that such arrangement had been made on a formal request made to the Asst. Director who was the local Officer at Tezpur. The learned Single Judge held that just because such request was made to the Presenting Officer, it is wholly unlikely that a bias finding would be given by the Inquiry Officer.
10. On the aspect whether prejudice had been caused for non-furnishing of the Inquiry Report to the appellant, the learned Single Judge held that in view of the fact that there was no effective participation of the appellant despite reasonable opportunity having been afforded and also in view of the fact that the appellant failed to give any response on merit and shied away 6 from adducing any defence evidence, in such circumstances the furnishing of Inquiry Report would not have resulted in any different consequence.
11. Relying on the case of Lalit Popli v. Canara Bank reported in (2003) 3 SCC 583 and in the case of Ramvir Singh v. Union of India reported in (2009) 3 SCC 97, the learned Single Judge delineated the power, jurisdiction and the circumstances under which interference can be made to a disciplinary proceedings. Reliance was also placed in the case of Managing Director, ECIL v. B. Karunakar reported in (1993) 4 SCC 727 as regards the effect of non- furnishing of the Inquiry Report.
12. On an exhaustive consideration of the points in issue and on the grounds of challenge so raised, the writ petition was found to be devoid of merits and was accordingly dismissed.
13. In the present appeal, the appellant has challenged the Judgment and Order dated 27.07.2015 primarily on the ground that the learned Single Judge utterly failed to consider the issue raised by the appellant in respect of the disciplinary proceedings being vitiated on account of the complainant being appointed as the Presenting Officer and with regard to the established relationship between the Inquiry Officer and the Presenting Officer resulting in a bias and lop-sided report. The nexus between the Inquiry Officer and the Presenting Officer was traced to the situation of the Presenting Officer making arrangement for the accommodation of the Inquiry Officer. The perversity in the disciplinary proceedings is made primarily on these two aspects which, according to the appellant, was not considered by the learned Single Judge.
14. We have heard Mr. D.C.K. Hazarika, learned counsel for the appellant as well as Ms. B. Gogoi, learned counsel representing the State Respondents. Upon careful examination of the materials on record we find that the contentions set forth on behalf of the appellant do not hold any water. The allegations and imputation that the learned Single Judge failed to consider the aforesaid aspects have been made as a matter of course and no credibility can be attached to it. At paragraph 16 and 17 of the judgment and order dated 27.07.2015, the learned Single Judge held as follows:
7"16. In this case the legality of the proceeding is questioned because the petitioner's immediate superior at Tezpur was made the Presenting Officer. But when the Rules do not bar such appointment, in the absence of any other reason, this by itself can't vitiate the inquiry proceeding, particularly when, the petitioner never questioned the legality or fairness of the preceding, at any earlier stage.
17. Here the Inquiry Officer had to travel to Tezpur to conduct the enquiry and therefore his accommodation at Tezpur had to be arranged for which formal request was made to the Asstt. Director, who was the local officer at Tezpur. Just because such request was made to the presenting Officer, a biased finding is unlikely to given and contention made to the contrary is thus rejected."
15. It thus appear that the edifice of the challenge made to the judgment and order dated 27.07.2015 stands unsubstantiated and contrary to the records.
16. We also do not find any infirmity in the disciplinary proceedings, inasmuch as, the same had commenced and stood completed according to the professed norms and in accordance with law without offending any rights of the appellant. The very fact that the appellant had chosen not to defend the charges and/or to participate in the proceedings stands to his detriment and cannot go to demonstrate any procedural lapse or impropriety in the conduct of the proceedings. The findings and decision of the learned Single Judge can neither be faulted nor be interfered with. The grounds of challenge having been effectively answered both in law and in facts, we find no reason to grant any relief to the appellant.
17. In view of the above, this writ appeal being devoid of merits is accordingly dismissed. The parties are left to bear their own costs.
JUDGE JUDGE sds