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Gauhati High Court

Sri Anil Kumar Mahanta vs The State Of Assam And Ors on 27 July, 2015

Author: Hrishikesh Roy

Bench: Hrishikesh Roy

                           IN THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)


                           Writ Petition (C) No. 5957/2007

1.      Sri Anil Kumar Mahanta,
        S/O. Late Jaydev Mahanta,
        R/o. Village - Gotanga, P.O. Balipukhuri Tiniali ,
        P.S. Tezpur, District: Sonitpur, (Assam).                 - Petitioner.

                         -Versus-

1.      The State of Assam
        Represented by the Commissioner & Secretary to the Govt. of Assam,
        Handloom & Textiles Department, Dispur, Guwahati-6 (Assam).
2.      The Director,
        Handloom & Textiles, Assam, Guwahati-5.
3.      The Joint Director,
        Handloom & Textiles, Assam, Guwahati-5.
4.      The Asstt. Director,
        Handloom & Textiles,
        Presenting Officer, Sonitpur, Tezpur (Assam).
5.      The Asstt. Director,
        Handloom & Textiles, Lakhimpur, Assam.
6.      The Superintendent,
        Handloom & Textiles, North Salmara, Abhayapuri,
        Assam.
7.      The Superintendent,
        Handloom & Textiles, Tinsukia, Assam.
8.      Sri J. N. Saikia,
        Inquiry Officer/ Deputy Director,
        Handloom & Textiles, Assam, Guwahati-5.                 -Respondents.


                                      BEFORE
                      HON'BLE MR JUSTICE HRISHIKESH ROY

For the Petitioner:                   Mr. D. C. K. Hazarika and
                                      Mr. R. Das, Advocates.

For the Respondents:                  Mr. J. Handique, Govt. Advocate, Assam.

Date of hearing & judgment:           27.07.2015.




Writ Petition (C) No.5957/2007                                               Page 1 of 8
                            JUDGEMENT AND ORDER (ORAL)

Heard Mr. D.C.K. Hazarika, the learned counsel appearing for the petitioner. The respondents are represented by the learned Govt. Advocate, Mr. J. Handique.

2. The petitioner while serving as Junior Inspector/Auditor, Cooperative (Handloom) at Tezpur, was given the notice on 29.12.1988 (Annexure-A), whereby he was asked to explain his unsatisfactory performance and frequent absence from duty on account of which, he failed to achieve the audit targets of the Cooperative Societies within his jurisdiction. In the notice the Director of Handloom & Textiles indicated that in the event of unsatisfactory explanation, disciplinary proceeding may be drawn up against the noticee. But instead of replying on the merit of the charges, the petitioner by his letter dated 18.1.1989 (Annexure-B) stated that without the copies of the allegations, he is unable to furnish his response.

3. At that stage, the order dated 25.1.1989 (Annexure-C) was issued whereby the petitioner was transferred from Tezpur to North Lakhimpur. Prayer for stay of transfer was rejected and although a release letter was issued on 6.2.1989 and the relieving officer reported for duty at Tezpur, the petitioner did not move to Lakhimpur and he also refused to accept the release order in the meantime.

4. Noticing the defiance, pending initiation of the disciplinary proceeding, the petitioner was placed under suspension on 29.11.1989. This was followed by the statement of allegation issued on 7.4.1990 (Annexure-F) and the charges being relevant are extracted here-in-below:-

"No.1:- While you are serving as Jr. Inspector/Auditor Coop. (Handloom) of the office of the Asstt. Director, Handloom & Textile, Tezpur, with effect from 9-4-87, a transfer was issued against you vide Directorate Order No.DHTE(COOP) 416/87/14, dt.25-1-89 vice Sri J.N. Sarmah, Junior Inspector/Auditor/Office of the Asstt. Director, Handloom & Textile, Lakhimpur transferred to the office of the Asstt. Director, Handloom & Textile, Tezpur in view of the fact that the service so rendered by you were found not so satisfactory for which an explanation was also called for by the Director of Handloom & Textile, Assam, Guwahati-5 vide letter No. DHTE(COOP) 399/87/12, dt.29-12-88. Accordingly the concerning authority the Asstt. Director, Handloom & Textile, Tezpur had released you on 6-2-89 while the relieving official had reported for duty at Tezpur vide his order No.DHTE.56/87/14, dt. 13-2-89. But you had refused to receive the said release order sent to you not only through the office peon Book but also sent through the Registered post in your home address and had not joined at the new place of posting at Lakhimpur till 29-11-89 prior to placing you under suspension. Moreover you had paid no heed to the repeated instruction issued from the Directorate vide under memo No. DHTE(COOP) 399/87/15, dt.27-3-89.

No.2:- While you are serving as Jr. Inspector/Auditor Coop. (Handloom) of the office of the Asstt. Director, Handloom & Textile, Tezpur, with effect from 9-4-87, it had come to the notice of the authority that the service so rendered by you is found not so satisfactory and the attendance was also so poor for which the immediate authority concerned had asked you verbally for improvement of your service as entrusted and perform your duty properly and regularly. On facility to do so as expected in due course, the salary for the month of August/88 was held-up by the authority for the time being subject to release the same on being improvement of performance of work etc. But as you had failed to show the satisfactory service, your salary for the subsequent months were also held-up by the authority and was up to January/89. In this respect an explanation was also called for from you by the Director of Handloom & Textile, Assam, Guwahati-5 vide letter No.DHTE (COOP) 399/87/12, dt.29-12-88. But instead of making analysis your performance, attendance etc. by yourself and submission of reply on the explanation, you simply wrote a letter to the Director of Handloom & Textile, Assam, Guwahati-5 seeking the relevant papers thereto through which you tried to show that you always used to perform your duty properly as entrusted and attend your duty regularly and the authority had ignored the same and called for explanation intentionally without any base as if. However while the transfer order was issued against you to joint at the office of the Asstt. Director, Handloom & Textile, Lakhimpur by the Director of Handloom & Textile, Assam, Guwahati-5 vide order No.DHTE(COOP) 416/87/14, dt.25-1-89, the held-up pay and allowances for the period from August/88 to January/89 was considered for release on humanitarian ground as well as to enabling you to join at your new place of posting and accordingly you were asked by the Asstt. Director, Handloom & Textile, Tezpur to receive the pay and allowance from the office of the Asstt. Director, Handloom & Textile, Tezpur vide his last letter No.ADHTE.56/87/15, dt.30/6/89. But you had refused to receive this letter so send under registered post in your home address. Not only this while you were asked from the Directorate vide letter No.DHTE (COOP).399/87/51-52, dt.8-12- 89 to receive the held-up pay for the month of August/88 to January/89 for the office of the Asstt. Director, Handloom & Textile, Tezpur within a stipulated time, you had paid no any heed the same also."

5. On the basis of the above charge memo, a show cause notice under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as 'the 1964 Rules') was issued, whereby the delinquent was charged with insubordination and disobedience of the order of the superior authority and he was also charged with dereliction of duty by his refusal to receive the Govt. letter(s). The noticee was given time to submit his written statement of defence within 10 days with further intimation that if an Inquiry Officer is appointed, he will be given opportunity to defend the charges and to present his case with assistance of an officer of his choice.

6. In response, the petitioner by his letter dated 18.5.1990 requested the Director to furnish the relevant documents. In response, the Joint Director on Writ Petition (C) No.5957/2007 Page 3 of 8 21.7.1990 (Annexure-H) informed the petitioner that, under Rule 9(3) of the 1964 Rules, the delinquent may inspect the relevant documents and take extracts and this facility was made available to the petitioner on 7.8.1990, in the office of the Director of Handloom & Textiles.

7. However the petitioner did not inspect the documents and failed to submit any response to the show cause notice/charge memo and accordingly Mr. J.N. Saikia, the Deputy Director, Handloom & Textiles was appointed as the Inquiry Officer and the Asstt. Director, Handloom & Textile, Tezpur was appointed as the Presenting Officer, through the letter dated 28.11.1990 (Annexure-I) issued by the disciplinary authority.

8. After the inquiry Officer was appointed, the petitioner requested for dropping of the departmental proceeding by projecting that the same was legally vitiated. However the proceeding continued and the Inquiry Officer issued notice to the petitioner to appear before him by fixing 10th & 11th June, 1992 as the dates of inquiry. But the petitioner failed to attend purportedly because of stomach pain and accordingly the inquiry was rescheduled on 7.10.2004 without any effective participation by the delinquent.

9. Thereafter the proceeding was concluded and inquiry report was furnished and after due consideration of the same, the disciplinary authority through the impugned order dated 3.8.2006 (Annexure-N) inflicted the following penalties:

"1. The 1st period of suspension i.e. from 29.11.89 to 29.8.99 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 commulative effect is to be deducted from his salary as penalty for gross disobedience of negligence of duty."

10.1. The learned counsel for the petitioner contends that since the relevant documents were not furnished to him, the delinquent was denied the opportunity to defend the charges.

10.2. Since the Asstt. Director was made the presenting officer in the inquiry, Mr. K. Hazarika submits that this has vitiated the process as the disciplinary proceeding was initiated on the complaint of this officer.

10.3. As the inquiry was held at Tezpur and the Inquiry Officer requested for arrangement of his accommodation by the Asstt. Director, the petitioner contends that because of this reason, a biased finding was given by the Inquiry Officer. 10.4. Moreover as the petitioner was reinstated after revocation of suspension on 28.10.1997 (Annexure-O), the counsel argues that the disciplinary authority could not have treated the first suspension period from 29.11.1989 to 29.8.1999 as "non duty"

period.

11.1. On the other hand, the learned Govt. Advocate, Mr. J. Handique submits that the petitioner never responded to the charges and in fact, he failed to participate in the inquiry despite due notice and therefore it is argued that the merit of the finding of the Inquiry Officer can't be challenged by the person who failed to defend the charges.

11.2. Referring to the previous history of non-performance and insubordination, the Govt. Advocate submits that after the petitioner was transferred to North Lakhimpur on 25.1.1989, although his reliever arrived at Tezpur but the delinquent refused to accept the release order of 6.2.1989 and thus it is submitted that the petitioner is rightly found guilty of insubordination and dereliction of duty.

12. Before considering the merit of the arguments, it must be noted at the outset that on challenges to disciplinary proceedings, the High Court does not act as an appellate authority and its jurisdiction is circumscribed by limiting itself to correct errors of law or procedural errors, leading to manifest injustice or violation of principles of natural justice. [See: Lalit Popli Vs. Canara Bank & ors. reported in (2003)3 SCC 583].

13. Proceeding on the above premises, let us now examine whether the disciplinary proceeding is vitiated by any procedural irregularity leading to manifest injustice to the delinquent. As earlier noted, though the petitioner was given due opportunity to inspect the management documents and also to take extracts thereof by the letter dated 21.7.1990 (Annexure-H), the delinquent failed to avail of the opportunity. Then he makes opportunistic allegation of denial of documents. In such circumstances, when the petitioner himself failed to avail of the opportunity to inspect and take extract of the documents, the legality of disciplinary proceeding can't be questioned on the ground of non-furnishing of the documents.

14. Moreover the petitioner failed to give any response on the merit of the allegations despite multiple notices. On this aspect before this Court also, Mr. D.C.K. Writ Petition (C) No.5957/2007 Page 5 of 8 Hazarika, the learned counsel has failed to indicate the precise defence of the delinquent to the charges leveled against him.

15. The delinquent as can be seen was issued multiple notices by the Inquiry Officer but even then, he failed to produce any mitigating evidence. Therefore since the petitioner himself failed to avail the opportunity provided to him, he can't be allowed to take advantage of his own lapses. Thus this case can't be treated as one where reasonable opportunity was denied to the delinquent in the disciplinary proceeding.

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 proceeding, 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.

18. It is also noteworthy that the delinquent at no earlier stage questioned the legality of the inquiry proceeding and more particularly he failed to adduce any defence evidence to prove his innocence. As was held in Ramvir Singh Vs. Union of India reported in (2009) 3 SCC 97, the law does not permit him to question the fairness of the inquiry for the first time in the High Court and on the basis of this ratio, such belated pleas in the High Court is not tenable.

19. Next thing is whether, non-furnishing of the enquiry report will legally vitiate the disciplinary proceeding. On this aspect one can usefully refer to the Managing Director, ECIL Vs. B. Karunakar reported in (1993) 4 SCC 727, where the Apex Court has held as follows:-

"30 (v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-

wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to a "unnatural expansion of natural justice" which in itself is antithetical to justice."

20. Therefore the prejudice aspect is required to be considered and/or whether different consequences will result, if the enquiry report would be furnished to the delinquent. Here the charged officer did not respond to the merit of the allegations in the show cause notice dated 29.12.2008 or to the charge memo dated 7.4.1990 or even to the notice dated 18.5.1990, issued under Rule 9 of the 1964 Rules. In fact although proceeding was rescheduled at delinquent's request, there was no effective participation of the petitioner. Therefore I feel that although all reasonable opportunity was afforded, the delinquent failed to give any response on merit and did not adduce any defence evidence. In such circumstances, I am of the considered opinion that furnishing of inquiry report to the delinquent can't result in any different consequences.

21. During disciplinary proceedings, the standard of proof is preponderance of probabilities and some relevant material to justify the conclusion reached by the Enquiry Officer and the writ Court is not expected to act as an appellate authority to judge the merit of the conclusion reached by the Enquiry Officer. Interference would be justified only when there is procedural error leading to manifest injustice. But in the present case, as earlier noted, the delinquent was afforded due opportunity to defend the charges but he never denied the charges and in fact kept himself away from the proceeding. Under such circumstances I hold that interference with the disciplinary proceeding will not be justified.

22. The next question is when the petitioner was reinstated after suspension, whether the penalty of suspension period being treated as "non duty" can be inflicted. In this context, the charge against the petitioner was insubordination and non-compliance of the transfer order dated 25.1.1989 and in fact, the petitioner never joined at his transferred place at Lakhimpur. For this reason, only for his fresh Writ Petition (C) No.5957/2007 Page 7 of 8 posting, the authorities had to reinstate the petitioner. Because of this backdrop to the reinstatement, the disciplinary authority can't be faulted for inflicting the impugned penalty of "non duty" against the delinquent for the concerned period.

23. It may also be noted that the 1964 Rules provides for Appeal under Rule 15 against penalty order inflicted under Rule 7 and in this case Mr. DCK Hazarika, the learned counsel for the petitioner submits that the petitioner had not approached the Appellate Authority to challenge the order dated 3.8.2006 and the consequential order dated 29.6.2007. Thus when alternative remedy is provided by the 1964 Rules and the delinquent had failed to avail that opportunity, the interference by the Writ Court on this count will not be justified in this matter.

24. For the foregoing factors, no merit is found in the present case and the same is accordingly dismissed. No cost.

JUDGE Barman.