Gauhati High Court
Dulal Mahanta vs Assam State Electricity Board & 3 Ors on 4 September, 2017
Author: Nelson Sailo
Bench: Nelson Sailo
0IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Petition (C) No.2948 of 2011
Sri Dulal Mahanta
S/O Late Gopi Kanta Mahanta
Pratap Sharma Road
Amolapatty, PO Nagaon,
District- Nagaon, Assam.
.......Petitioner.
-Versus-
1.Assam State Electricity Board
Represented by the Chairman,
Bijulee Bhawan, Paltanbazar,
Guwahati and 4 Ors.
....... Respondents.
BEFORE
THE HON'BLE MR. JUSTICE NELSON SAILO
For the Petitioner : Ms. P Bhattacharjee, Advocate.
For the Respondents : Mr. S Chakraborthy, Standing
Counsel, APDCL
Date of Hearing :04.09.2017
Date of Judgment :04.09.2017
Page 1 of 16
JUDGMENT AND ORDER (ORAL)
Heard Ms. P Bhattacharjee, the learned counsel for the petitioner and Mr. S Chakraborthy, Standing Counsel, Assam Power Distribution Company Ltd. (APDCL). None appears for the respondent No.4 despite notice.
2. Brief facts of the case may be narrated at the outset. The petitioner who was working as Deputy Manager at Kaliabor Electrical Sub- Division, Nagaon under the APDCL at the relevant time on 20.12.2007 (Annexure-1) submitted an FIR before the Officer-in-Charge of the Haiborgaon Police outpost in the district of Nagaon to the effect that on 15.12.2007 during his visit to the proposed BTS site of BSNL, Mullapattay, Nagaon, he noticed three labourers brining some Conductor from a Conductor Drum and on upon making a query he was informed that one Sri Dhruva Lal Dey (Respondent No.4), , FME, NESD-III gave them instructions for bringing the conductor to that place. Respondent No.4 soon after arrived on the spot and claimed that the materials were APDRP materials and he was the recipient. However, since the materials were not supposed to be available at the place where it was found without proper authorization, the petitioner upon being instructed, submitted an FIR by incorporating the total value of the materials that was found with an estimate of Rs,3,54, 000/-.
3. Pursuant to the FIR, a criminal case under section 409/411 of the IPC was registered under the Nagaon Police Station Case No.978 of WP (C) No. 2948 of 2011 Page 2 of 16 2007 and investigation was made by the assigned police officer. Consequently, the Investigation Officer submitted the Final Report and the learned Chief Judicial Magistrate of Nagaon issued summon to the petitioner directing him to appear before the Court on 30.9.2008 for raising objections against the Final Report of the Investigation Officer if any. On 30.9.2008, the petitioner appeared before the Court and submitted his no-objection to the Final Report of the Investigation Officer. Thereafter vide order dated 30.9.2008, the learned CJM discharged the respondent No. 4 from the police case registered against him.
4. Thereafter on 3.12.2008(Annexure-5), the respondent No.3 issued a show cause notice to the petitioner requiring him to show cause on the allegation that prima facie the petitioner appeared to have doubtful integrity and unreliable behavior against the interest of the company amounting to misconduct under Rule 10 (f) of the ASEB (General Services) Regulation (for officers), 1960 (The Regulation). It was stated that the order of discharge in favour of the respondent No.4 dated 30.9.2008 was a result of the no-objection submitted by the petitioner against the Final report of the Investigation Officer although the petitioner himself had lodged the FIR. Furthermore, on 10.4.2008 during the departmental proceedings drawn up against the respondent No.4, the petitioner had clearly deposed before the Enquiry Officer of the alleged involvement of the respondent No.4 for the theft of the materials mentioned in the FIR.
5. Against the show cause notice, the petitioner submitted his reply on 13.12.2008 denying the allegation made against him and that he had not violated the Regulation-10(1) as alleged. He stated that there was nothing wrong in the submission of the no-objection against the Final WP (C) No. 2948 of 2011 Page 3 of 16 report submitted by the Investigation Officer in as much as the Investigation Officer after making his investigation did not find sufficient materials to implicate the respondent No.4 and in fact if the establishment was not satisfied with the discharge of the respondent No.4, appropriate remedy was available through the relevant provisions of the Code of Criminal Procedure. He submits that the allegations were only misconceived and he was being victimized.
6. The respondent authorities not being satisfied with the reply of the petitioner to the show cause notice, issued a charge sheet on 21.4.2009 (Annexure-7) whereby two charges were drawn against the petitioner i.e. negligence of duty and breach of the ASEB Office (Conduct)Regulations, 1982. Petitioner was asked to submit his statement of defense within 10 days from the date of receipt of the communication.
7. Regulation-10(1) as provided in the statement of allegation of the charge sheet may be reproduced for reference:
Regulation-10(1) and the Regulation 3(1) "Regulation-10(1): Every Officer of the Board shall discharge the duties assigned to him with integrity, loyalty and promptitute and carryout all lawful orders of his superiors in respect of the duties assigned to him".
"Regulation-3(1):EveryOfficer of the Board/Company shall at all times (i) maintain absolute integrity (ii) maintain devotion to duty (iii) do nothing which is unbecoming of an Officer of the Board/Company".WP (C) No. 2948 of 2011 Page 4 of 16
8. The charge of negligence of duty was substantiated in the statements of allegations made against the petitioner as was communicated vide show cause notice dated 3.12.2008. Further, as for the charge No.2 i.e. breach of the Regulation, the petitioner was alleged to have failed to maintain absolute integrity, devotion to his duty and acted in a manner which is unbecoming of an Officer of the Board/ Company and thereby clearly a breach of the Regulation. Along with the Charge sheet, a list of documents as well as list of witnesses were also provided under the heading 'Annexure-1'.
9. The petitioner against the charge sheet submitted his reply on 4.5.2009 (Annexure-8) denying the charge made out against him. The petitioner stated that whatever statement that was made by him during the departmental enquiry against the respondent No.4 were only based on the materials available on the official records and not on the basis of his personal knowledge. He also stated that the application submitted by him before the Court were not the basis of the order dated 30.9.2008 passed by the learned CJM discharging the respondent No.4. Therefore, his application before the Court or the order dated 30.9.2008 not being furnished to him could not be the basis of the charge made out against him. He also stated that after the respondent No.4 was discharged and the Zimanama cancelled, the seized articles were neither claimed by the Electricity Board nor by the respondent No.4. Therefore, in the absence of any loss sustained by the Board, the question of the petitioner being charged with negligence or failure of supervision did not arise. He therefore prayed that the charges be dropped against him.
WP (C) No. 2948 of 2011 Page 5 of 1610. The respondents nevertheless proceeded with the enquiry by appointing an Enquiry Officer for the purpose. The Enquiry Officer after completion of the enquiry submitted his report on 28.8.2009 (Annexure-9) with a finding that the charge against the petitioner in terms of the charge sheet dated 21.4.2009 were found to be proved. The Enquiry Officer found that although the petitioner in his written statements contended that his deposition during the departmental enquiry made against the respondent No. 4 were based on materials available in the official records and not on his personal knowledge, were in fact not substantiated by him to show as to what records he was referring to. The statements of the petitioner was clearly inconsistent as he had clearly implicated the respondent No.4 during the departmental enquiry against the respondent No.4 where he was cited as one of the department witness and he also clearly mentioned the same in the FIR whereas in the petition filed by him before the Court he accepted the Final Report made by the Investigation Officer leading to the discharge of the respondent No.4. Moreover, the petitioner before filing the petition before the Court should have consulted his superior i.e. the Deputy General Manager. Thus, the charge of negligence was proved and on that count the charge No.2 also stood proved to the extent it was proved against charge No.1. Consequently, the respondent authorities vide communication dated 8.10.2009 (Annexure-
10) issued a second show cause notice to the petitioner contemplating the imposition of a penalty of reduction to a lower stage by withholding five increments with cumulative effect. The petitioner by the same communication was asked to be present for personal hearing on 28.10.2009 at the designated office chamber given in the notice. Although the petitioner filed his reply to the second show cause notice dated 8.10.2009 before the Managing Director on 28.10.2009, the Chairman WP (C) No. 2948 of 2011 Page 6 of 16 Director of APDCL nevertheless passed the impugned order dated 29.10.2009 (Annexure-12) imposing upon the petitioner a penalty of withholding one increment with cumulative effect.
11. Being aggrieved, the petitioner filed an appeal under Regulation-8 of the Regulation before the Board on 16.12.2009. However, the Board vide its decision taken in the 34th Board meeting held on 10.12.2010, rejected the appeal of the petitioner and upheld the penalty imposed upon the petitioner. The petitioner being highly aggrieved is before this Court.
12. Appearing for the petitioner, Ms. P Bhattacharjee, the learned counsel submits that the imposition of the penalty by withholding one increment with cumulative effect and also the manner in which the departmental proceeding was drawn up against the petitioner is unsustainable under the given facts and circumstances. She submits that the petitioner prior to filing of the FIR duly informed his superiors and it was as per their instruction that he had filed the FIR on 20.12.2007. She submits that the investigation was carried out by the police authorities pursuant to the filing of the FIR and thereafter the Final Report submitted before the Court. The petitioner being summoned by the Court had only submitted his no objection against the report submitted by the police authorities. That by itself cannot be the ground to proceed with the petitioner departmentally since the petitioner had not committed any wrong. She submits that FIR was only an instrument to put the investigation in motion and it is only by appreciating the contents of the Final Report that Court can proceed with the trial or discharge the accused. She submits that the acceptance of the petitioner with regard to WP (C) No. 2948 of 2011 Page 7 of 16 the Final Report cannot therefore have any bearing in the order to be passed by the learned CJM. She submits that the CJM by considering the materials available pursuant to the investigation done by the Investigation Officer found no prima facie case against the respondent No.4 and accordingly discharged him from the case. Therefore, the petitioner on the said premises could not have been proceeded with by the respondent authorities by charging him for violating the Regulation.
13. Ms. P Bhattacharjee further submits that the respondent authorities are very well aware of their rights. If they were not satisfied with the discharge of the respondent No.4, they are not prevented from filing appeal or otherwise against the order of discharge. The said procedure was not adopted by the respondent authorities and instead the petitioner has been made the scapegoat. She also draws the attention of the Court to the order dated 4.8.2008 by which the respondent No.4 was proceeded with departmentally and as a result his pay was reduced by one increment in the existing time scale with immediate effect. Subsequently, vide office order dated 17.12.2009, the penalty imposed upon respondent No.4 was modified and made effective for only one year w.e.f. 4.8.2008. She has further drawn the attention of the Court to the Zimmanama dated 23.12.2007 by which the petitioner had taken the Zimamanama of the seized materials. She submits that although the seized materials were taken back from the custody of the Court but no one has come forth to claim the said materials. The petitioner was transferred from the Division to Kaliabar Electrical Sub-Division and pursuant to which on seeking instruction from his superior, he was asked to hand over the unclaimed materials to his reliever. She therefore submits that as there is none to claim the said materials, the question of WP (C) No. 2948 of 2011 Page 8 of 16 implicating the petitioner and thereafter imposing upon him the impugned penalty is not justified and unsustainable.
14. Ms. P Bhattacharjee by referring to the appeal filed by the writ petitioner on 16.12.2009 also submits that despite the fact that the petitioner had taken reasonable and good grounds of appeal, the appellate authority i.e. the Board, failed to consider the appeal of the petitioner in terms of the powers conferred upon the Board as per the Regulation. She submits that instead of a consideration as per the relevant provisions, the Board in a most perfunctory manner summarily rejected the appeal of the petitioner.She therefore submits that under the given facts and circumstances, the impugned order of penalty dated 29.10.2009 and the decision of the Board taken on 10.12.2010 cannot be sustained and the same should be set aside and quashed. Ms. P Bhattacharjee also submits that the punishment of withholding one increment with cumulative effect as was imposed upon the petitioner vide order dated 29.10.2009 is not provided for in the Regulation and therefore the petitioner could not have been imposed with such a penalty. The Regulation clearly provides that the stoppage of increment has to be for a specified period. She therefore submits that even on this count, the imposed penalty upon the petitioner is not sustainable.
15. Appearing for the respondents APDCL, Mr. S Chakraborthy submits that the impugned order of penalty inflicted upon the petitioner as well as the order passed by the appellate forum is sustainable in law. Mr. S Chakraborthy submits that when the discovery was made by the petitioner with regard to the materials which were unauthorizedly found at the proposed BTS site of the BSNL, the petitioner on instruction was asked WP (C) No. 2948 of 2011 Page 9 of 16 to file FIR which he filed accordingly on 20.12.2007 implicating the respondent No.4 as he claimed to be the recipient of the same. Besides the FIR, the respondent authorities initiated the departmental proceedings against the respondent No.4 by placing him under suspension on 28.12.2007. Thereafter he was chargesheeted on 23.1.2008 wherein the petitioner was also asked to depose as the prosecution witness on 10.4.2008. In the enquiry proceeding, the petitioner deposed of the alleged involvement of the respondent No.4 on the recovered materials. While such was the stand of the petitioner in the FIR as well as in the departmental enquiry initiated against the respondent No. 4, the petitioner on 30.9.2008 submitted his no objection in writing before the CJM, Nagaon stating that he had no objection against the report submitted by the police in connection with the Nagaon Police Station Case No.978 of 2007 and thereby resulting in the discharge of the respondent No.4. Therefore, the stand of the petitioner being most contradictory, the respondent authorities found a prima facie case against him for his doubtful integrity and unreliable behavior against the interest of the company attracting Regulation 10(1) of the Regulation. The petitioner's reply to the show cause notice not being found satisfactory, a detailed departmental proceeding was drawn up against him which resulted with the finding that the charge against the petitioner to be proved.
16. Mr. S Chakraborthy submits that the entire enquiry proceeding was conducted in a free and fair manner and the petitioner was given all the opportunity to present his case and therefore the unsubstantiated stand of the petitioner that the enquiry officer was absolutely biased and findings perverse is without any basis. He submits that with the discovery made by the writ petitioner, the FIR was filed on the instruction of the WP (C) No. 2948 of 2011 Page 10 of 16 respondent authorities and therefore, the complaint was made on behalf of the respondents Company. However, the petitioner without consulting his superiors proceeded to file his no-objection against the Final Report of the Investigation Officer which resulted in the discharge of the respondent No.4. Such action/inaction on the part of the writ petitioner is most unprecedented and against the interest of the company while he being one of the employee himself. The no-objection submitted by the petitioner while helping the respondent No.4 to be discharged by the CJM also clearly indicate the doubtful integrity of the petitioner since his statements before the enquiry proceeding against the respondent No.4 implicated his involvement. Therefore, upon completion of the enquiry and the charge being proved, the petitioner was duly issued a second show cause notice giving him another opportunity to show cause as to why the proposed penalty should not be inflicted upon him. Thereafter, upon consideration of the reply given by the petitioner, the disciplinary authority decided to impose the penalty of stoppage of one increment with cumulative effect. The appeal of the petitioner was also duly considered by the Board and after taking into account that all the procedures and formalities had been duly applied before imposition of penalty, the Board found that there was no ground to interfere with the findings and quantum of the penalty imposed upon the petitioner and thus upheld the impugned order of penalty.
17. Mr. S Chakraborhty further submits that unless there is irregularity committed during the enquiry proceedings or that the findings of the enquiry officer is perverse and not based on relevant materials, Court would not interfere with such proceedings and also on the penalty consequently imposed upon the delinquent officer. He submits that in the WP (C) No. 2948 of 2011 Page 11 of 16 instant case as well, the respondent authorities have given all the opportunity to the petitioner and the enquiry proceeding was conducted by following the established procedures and norms and therefore no interference is called for. He further submits that with regard to the respondent No.4 being imposed with a lesser penalty, the same is a different matter altogether in as much as the charge made out against the petitioner is of his gross negligence of his assigned duty and the contradictory stand taken by him within a short span of time found to be in violation of the Regulation of the Company. The charge clearly being established, there is no scope for drawing up of corollary with the proceedings against the respondent No.4. He thus submits that under the facts and circumstances, the writ petition being without merit should be dismissed.
18. I have heard the learned counsel for the rival parties and I have perused the materials available on record. Mr. S Chakraborhty has also produced the relevant records pertaining to the departmental proceedings and I have also perused the same. The facts which emerged from the pleadings and contentions of the rival parties is that the FIR was lodged on 20.12.2007 by the petitioner pursuant to the consultation with his superiors on the discovery made by him while making a site visit to the proposed BTS site of the BSNL. The materials which were found at the site was claimed by the respondent No. 4 as ABADRP materials and that he was the recipient of the same. The same having been found to be irregular, FIR was lodged but however after the investigation was conducted and completed, the learned CJM did not find it fit to proceed against respondent No. 4 and discharged him from the liability vide order dated 30.9.2008. The role of the petitioner in the process was his filing of WP (C) No. 2948 of 2011 Page 12 of 16 no-objection against the police report filed by the Investigation Officer. This action of the petitioner was found to be contrary to the deposition he had made against the departmental enquiry conducted against the respondent No.4 which led to the issuance of the show cause notice to him as well. The action of the writ petitioner was found to be in violation of the Regulation 10(1) since his statements were found to be contradictory. On perusal of the records produced by Mr. S chakraborhty, it can be seen that the petitioner had informed the Senior Manager, Nagaon Electrical Division -I Nagaon on 19.12.2007 that the materials which were found at the site were of the approximate value of Rs.3, 54,000/- and respondent No.4 apparently was responsible for diverting the materials and thereby confirmed his involvement in the matter with the ill motive. It was also stated in the said communication that the materials have been procured by the respondent No.4 without prior approval and intimation from the competent authority as was informed by the petitioner on earlier occasion.
19. Considering the stand of the writ petitioner and the no-objection to the Final Report submitted before the CJM, the charge framed against the petitioner can only be the natural outcome of the conduct of the petitioner. Although the petitioner has maintained that the enquiry proceedings conducted by the enquiry officer was absolutely bias, perverse and perfunctory, I find that the same is only an averment of routine nature as the petitioner was afforded opportunity for responding to the steps taken by the disciplinary authority right from the issuance of the first show cause notice upto the issuance of the ultimate notice upon the submission of the enquiry report and therefore on the averment that the proceedings have been vitiated on account of arbitrariness or WP (C) No. 2948 of 2011 Page 13 of 16 perversity, in my considered view is not to be found. However, at the same time, the petitioner having been imposed with a penalty has the right to ventilate his grievance against the penalty imposed before the appellate forum which in the instant case is the Board. Regulation 10(8) and Regulation 10(9) provides that the officer may prefer an appeal against the order of penalty/penalties specified in the Regulation within a period of two months from the date of receipt of the order by which the appellant is aggrieved and thereafter the appeal is to be considered by the Board on certain parameter including the justification of the findings the excessiveness of the penalty and its adequateness etc. Thereafter, the Board may set aside, reduce, confirm or enhance the penalty or even remit the case back to the authority for imposition of such penalty as it may deem fit . A perusal of the said provision clearly indicates that some responsibilities is cast upon the appellate authority to consider the appeal before it. In the instant case, the appellate authority i.e. the Board in its 34th Board meeting held on 10.12.2010 apparently appears to have summarily considered the appeal of the petitioner while rejecting the same.
20. It may also be noticed herein that the penalties that can be imposed upon the officer of the establishment are provided in Regulation- 10(2) (a) wherein amongst the various types of penalties that can be imposed, 'stoppage of increment for a specific period' has been provided at Regulation 10(2) (a) (iii). However, in the case of the petitioner the penalty imposed upon him was no doubt stoppage of one year increment but the same has been made with cumulative effect. While examining the penalty imposed upon the petitioner, it may not be out of place to notice the fact that respondent No.4 although proceeded with a separate enquiry WP (C) No. 2948 of 2011 Page 14 of 16 proceeding altogether was imposed with the penalty of reduction of pay by one increment in the existing time scale. The said penalty was subsequently restricted or made effective for a period of one year only. Therefore, it can be seen that the respondent authorities are aware of the fact that if the penalty of increment is to be withheld, the duration of the penalty is to be specified in terms of the Regulation aforementioned.
21. The role of the Court as well as the extent to which it is required to travel while examining the process of departmental proceedings is well settled. The role of the Court is mainly confined to examining the decision making process and not the decision itself. Court is not prevented from appropriately interfering with such proceeding if the same is found to be perverse or the conclusion so reached is not based upon the relevant materials in the proceedings. As may be noticed, the departmental proceeding being vitiated due to perversity or irregularities is not be found in the proceedings drawn up against the petitioner and therefore, interference on that count would not be called for. However, upon finding the manner in which the appeal of the petitioner has been addressed and also the kind of penalties found in the Regulation, I am of the considered view that the penalty imposed upon the petitioner should be re-considered by the authority i.e. the Board. It is submitted at the bar that the petitioner has since retired from service from the post of Sub- Divisional Engineer while posted at Nagaon on 31.8.2015. Therefore, it would be only be incumbent upon the Board to examine the appeal of the petitioner afresh by taking into account the types of penalties provided in the Regulation at the same time expeditiously since his pension would be determined on the basis of the outcome of the appeal WP (C) No. 2948 of 2011 Page 15 of 16
22. Having opined thus, the writ petition is disposed of with a direction to the respondent No.2 i.e. the Chairman and Managing Director, APDCL to place the appeal of the petitioner before the Board within a period of 3(three) weeks from the date of receipt of a certified copy of this order and the Board shall thereafter consider and dispose the appeal within a period of 2(two) months from the date of receipt of the appeal keeping in mind the observation made hereinabove. The decision of the Board shall be communicated to the petitioner. Petitioner shall also be at liberty to submit a copy of the writ petition alongwith annexures appended thereto before the respondent No.2 for consideration of the Board. In the result, the decision of the Board dismissing the appeal of the petitioner vide its 34th meeting minutes dated 10.12.2010 is hereby interfered with.
23. It is also made clear that so far as the findings of the enquiry officer is concerned, the same has not been interfered with but it is the quantum of the penalty that has been imposed upon the petitioner that is to be considered by the Board at its discretion based upon sound principles and the Regulation as well.
24. No cost.
JUDGE Nivedita WP (C) No. 2948 of 2011 Page 16 of 16