Gauhati High Court
Khandan Kumar Das vs The State Of Assam And 3 Ors on 12 October, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
WP(C) No. 3407/2014
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
12.10.2015
Heard Mr. B. Goswami, learned counsel for the petitioner
and Mr. M. Khataniar, learned counsel for the contesting respondent
Nos. 3 & 4.
2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of orders dated 05.01.2012 and 26.06.2012, both passed by the Chairman, Biswanath Chariali Municipal Board, and further seeks a direction for his reinstatement in service with all consequential reliefs.
3. At the relevant point of time, petitioner was working as Tax Daroga in the Biswanath Chariali Municipal Board (Municipal Board). Petitioner was a regular employee in the service of the Municipal Board, having joined in the year 1985.
4. Chairman of the Municipal Board issued a show-cause notice dated 17.01.2011 calling upon the petitioner to show-cause as to why disciplinary action should not be taken against him for violation of office discipline. It was alleged that inspite of giving written undertaking to maintain office discipline, petitioner had remained absent from duties for which Municipal Board had suffered financial WP(C) No. 3407 of 2014 Page 1 of 9 loss. In response thereto petitioner submitted his reply dated 24.01.2011. In his reply he stated that he felt disheartened when he was told that decision was already taken to compulsory retire him from his service. Because of his troubled mental condition, the indiscipline alleged had taken place. Petitioner had given an assurance that in future if it was found that he had indulged in any indisciplined behaviour, authority may impose any punishment including compulsory retirement.
5. Thereafter, the first impugned order dated 05.01.2012 was passed by the Chairman demoting the petitioner to the post of Assistant Tax Daruga. After about six months, the second impugned order dated 26.06.2012 was passed by the Chairman imposing the penalty of compulsory retirement on the petitioner.
6. Aggrieved, present writ petition has been filed seeking the reliefs as indicated above.
7. An affidavit has been filed on behalf of respondent No. 1 stating that since petitioner was an employee of a Municipal Board, he would be governed by the provisions of Assam Municipal Act, 1956, more particularly, Section 50 thereof. State has no role to play in this matter.
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8. Respondent No. 3 in his affidavit has stated that petitioner was initially appointed as Tax Collector on 27.09.1985. Thereafter, he was promoted to the post of Assistant Tax Daroga on 03.10.1996 and finally promoted to the post of Tax Daroga on 29.08.2005. Further stand taken in the affidavit is that while performing his duty as Tax Daroga petitioner had committed some financial anomalies by not depositing collected money to the tune of Rs.1,11,426.00. When notice was issued to him by the Chairman, petitioner broke discipline and decorum of the Office. Because of indiscipline and bad behaviour, Municipal Board in its meeting dated 25.08.2010 had decided to impose the penalty of compulsory retirement on the petitioner. Accordingly, show-cause notice was issued on 17.01.2011. Since petitioner apologized for his indisciplined behaviour, penalty of compulsory retirement was not imposed and instead petitioner was demoted from the post of Tax Daroga to the post of Assistant Tax Daroga. Thereafter, penalty of compulsory retirement was imposed on the petitioner for his alleged continued indisciplined behaviour.
9. Mr. Goswami, learned counsel for the petitioner submits that both the impugned order of penalty are ex facie illegal being in complete violation of the principles of natural justice as well as the procedure laid down under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964. Referring to the first penalty of demotion, he submits that no enquiry was conducted and no opportunity of hearing WP(C) No. 3407 of 2014 Page 3 of 9 was granted to the petitioner before imposition of the said penalty. In so far the second penalty is concerned, not to speak of holding enquiry, not even a show-cause notice was issued to the petitioner. Further or rather alternative submission is that once a penalty has been imposed on a particular allegation/charge, it was not open to the Chairman or to the Municipal Board to impose further penalty on the said allegation/charge. Therefore, on the above account, the two orders of penalty cannot be sustained and are required to be set aside and quashed. He submits that because of the illegal and unauthorized action of the Chairman, petitioner and his family members have suffered grave hardship and the situation is required to be remedied urgently.
10. On the other hand, Mr. Khataniar, learned counsel appearing for respondent Nos. 3 and 4 submits that under Section 50 of the Assam Municipal Act, 1956, the Chairman is vested with the power to impose penalty on an employee of a Municipal Board. Therefore, the Chairman had exercised his lawful authority as provided under the Act. It was a case of indisciplined behaviour on the part of the petitioner who admitted his mistake. In such a situation holding of enquiry may not be necessary. Penalty imposed cannot be said to be disproportionate to the gravity of the offence or shocking to the judicial conscience. No case for interference is made out, he submits.
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11. Submissions made by learned counsel for the parties have received the due consideration of the Court.
12. As already noticed above, on 17.01.2011 a show-cause notice was issued to the petitioner by the Chairman. A perusal of the show-cause notice would show that the allegation against the petitioner was that he had breached office discipline and had remained absent from duties. To say the least, it was not even a charge; rather it was an allegation. The allegation was of non- maintenance of office discipline and remaining absent from duty. However, how the discipline was not maintained and when or for which period the petitioner was absent from duty were not spelt out in the show-cause notice. It was also not the allegation that such absence was unauthorized. The allegation was vague to say the least. However, petitioner submitted his show-cause reply whereby he stated that when he came to know that a decision was already taken to impose the penalty of compulsory retirement on him, he became mentally disturbed which resulted in heated exchange of words in the office. However, he had given an undertaking that he would maintain discipline in the office in future. There is nothing on record to show that the show-cause reply submitted by the petitioner was considered by the disciplinary authority i.e. by the Chairman and that he was not satisfied by the reply so given.
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13. No enquiry was conducted to enquire into the charges/allegations brought against the petitioner and straightway the impugned order dated 05.01.2012 was passed imposing the penalty of demotion from the post of Tax Daroga to Assistant Tax Daroga on the petitioner.
14. As if that was not enough, 6 months thereafter, the second impugned order came to be passed on 26.06.2012 imposing the penalty of compulsory retirement on the petitioner. A perusal of the said order would show that reference was made to the earlier show-cause notice dated 17.01.2011 and the petitioner's reply dated 24.01.2011. In other words, no fresh show-cause notice was issued to the petitioner after imposition of the penalty of demotion.
15. Section 50 of the Assam Municipal Act, 1956 deals with appointment and pay of establishment. As per the first proviso to Section 50, the Chairman is both the appointing authority as well as the disciplinary authority. He is vested with the power to remove an employee in the service of the establishment for inefficiency, negligence of duty or misconduct. No doubt, the Chairman being the disciplinary authority is vested with the power and authority to remove an employee of a Municipal Board on account of inefficiency, negligence of duty or misconduct. It goes without saying that vesting of power in an authority is one thing and exercise of such power is WP(C) No. 3407 of 2014 Page 6 of 9 another thing. The power so vested has to be exercised in a manner which is consistent with the mandate of Article 14 of the Constitution of India. In other words, such power has to exercised in a reasonable manner and cannot be exercised in an arbitrary or whimsical manner, howsoever the provocation may be. Since removal from service is a major penalty, the same has to be preceded by a fair procedure which would include compliance to the principles of natural justice. The principles of audi alteram partem is too well settled to require any re- instatement. No person can be punished without affording him a reasonable opportunity of hearing. This is the fundamental principle of law which is required to be followed while imposing any penalty, not to speak of a major penalty like removal from service.
16. A delinquent employee is required to know what is the charge framed against him. The charge therefore will have to be specific, clear and unambiguous. If the disciplinary authority decides to hold disciplinary proceeding against a delinquent employee, the first and foremost requirement would be to frame definite charges against him capable of being understood and replied by the delinquent employee. Reply submitted by the delinquent to the charge framed would have to be considered by the disciplinary authority. If the reply is found to be satisfactory the matter can be dropped at that stage itself. If it is found to be not satisfactory the disciplinary authority either by himself or through another authority is required to conduct WP(C) No. 3407 of 2014 Page 7 of 9 an enquiry to enquire into charges framed against the delinquent since the penalty is removal from service, a major penalty, wherein due and adequate opportunity is required to be given to the delinquent employee to defend himself, including by adducing of evidence.
17. Enquiry report has to be prepared based on the enquiry proceedings and specific findings are required to be recorded as regards the charges framed. Copy of the enquiry report is required to be given to the delinquent employee prior to the decision of the disciplinary authority either to accept the enquiry report or not to accept the report i.e., before deciding on the guilt or otherwise of the delinquent employee. If the delinquent employee submits his representation on the enquiry report, the same is required to be considered by the disciplinary authority together with the record of enquiry and thereafter to take a decision either to hold the delinquent employee guilty or not guilty. If the report is thereafter accepted i.e. if the delinquent employee is held guilty, commensurate penalty may be imposed on him by the disciplinary authority.
18. In sum and substance this would comprise a fair procedure which would be in tune with the mandate of Article 14 of the Constitution of India and also in compliance to the requirement of fair procedure. While imposing the major penalties of first demotion and then compulsory retirement, Municipal Board admittedly did not WP(C) No. 3407 of 2014 Page 8 of 9 follow any such procedure. Thus there was violation of the principles of natural justice and fair procedure not only in the second instance but also in the first instance. To satisfy the test of reasonableness and rationality principles of natural justice and fair procedure would have to be read into Section 50 of the Assam Municipal Act, 1956.
19. Moreover, having regard to the first proviso to Section 50 of the Assam Municipal Act, 1950 the disciplinary authority must record specific finding of guilt as regards inefficiency, negligence of duty or misconduct to justify imposition of the penalty of removal from service on the delinquent employee. Such a finding is totally absent in the present case.
20. Accordingly and in the light of the above, the two impugned orders dated 05.01.2012 and 26.06.2012 cannot be sustained in law and are accordingly set aside and quashed. Petitioner shall be re-instated in service forthwith with full backwages.
21. Writ petition is allowed but without any order as to cost.
JUDGE Aparna WP(C) No. 3407 of 2014 Page 9 of 9