Page No.# 1/6 vs Sukhen Kanwar And Anr
2021 Latest Caselaw 503 Gua

                                                                  Page No.# 1/6

GAHC010128492019




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

                                   Case No. : WA/350/2019

            THE ASSAM POWER DISTRIBUTION COMPANY LTD. AND 7 ORS
            REP. BY ITS MANAGING DIRECTOR, BIJULEE BHAWAN, GUWAHATI-1.

            2: THE CHIEF GENERAL MANAGER
             F AND A
            APDCL
             BIJULEE BHAWAN
             GUWAHATI-1

            3: THE CHIEF GENERAL MANAGER
             UPPER ASSAM ZONE ELECTRICITY DISTRIBUTION COMPANY LIMITED
             BIDYUT BHAWAN
             NA-ALI, JORHAT, ASSAM

            VERSUS

            SUKHEN KANWAR AND ANR
            REP. BY ITS MANAGING DIRECTOR, BIJULEE BHAWAN, GUWAHATI-1.

            2:SRI MANORANJAN KALITA
             SUB-DIVISIONAL ENGINEER
             BOKO ELECTRICAL SUB-DIVISION
            APDCL
             P.O. BOKO
             DIST.- KAMRUP
            ASSAM- 781123

Advocate for the Petitioner   : MR B DAS

Advocate for the Respondent :
                                                 Page No.# 2/6


Linked Case : WA/351/2019

SUKHEN KONWAR
S/O LATE BUDDESHWAR KONWAR
R/O DEVELOPMENT AREA
P.O. NIRMALIGAON
P.S. DIBRUGARH
DIST. DIBRUGARH
ASSAM.


VERSUS

THE ASSAM STATE ELECTRICITY BOARD AND 8 ORS
REPRESENTED BY ITS CHAIRMAN
BIJULI BHAWAN
P.O. PAN BAZAR
GUWAHATI 781001

2:THE ASSAM POWER DISTRIBUTION CO. LTD.
REPRESENTED BY THE CHIEF ENGINEER D UAZ
 BIJULI BHAWAN
 P.O. PAN BAZAR
 GUWAHATI 781001
 3:THE CHIEF GENERAL MANAGER
F AND A
ASSAM POWER DISTRIBUTION CO. LTD.
 UAZ
 BIJULI BHAWAN
 P.O. PAN BAZAR
 GUWAHATI 781001
 4:THE SENIOR MANAGER
DIBRUGARH ELECTRICAL DIVISION
ASSAM POWER DISTRIBUTION CO. LTD.
 DIBRUGARH
 P.O. DIBRUGARH
 DIST. DIBRUGARH
ASSAM.
 5:THE CHIEF GENERAL MANAGER O
UPPER ASSAM ELECTRICITY DISTRIBUTION CO. LTD.
 BIDYUT BHAWAN
 NA-ALI
 P.O. JORHAT-1
 DIST. JORHAT
ASSAM.
 6:THE DEPUTY GENERAL MANAGER
                                                                            Page No.# 3/6

            DIBRUGARH ELECTRICAL CIRCLE
             UPPER ASSAM ELECTRICITY DISTRIBUTION CO. LTD.
             P.O NIZ KADAMONI
             DIBRUGARH
             DIST. DIBRUGARH
             ASSAM.
             7:THE DEPUTY PERSONNEL MANAGER
            INQUIRY OFFICER
             OFFICE OF THE GENERAL MANAGER
             UPPER ASSAM ZONE
             UAEDCL BIDYUT BHAWAN
             P.O. AND DIST. JORHAT
             ASSAM.
             8:THE SUB MANAGER REVENUE
            DIBRUGARH ELECTRICAL SUB-DIVISION-III
             UPPER ASSAM ELECTRICITY DISTRIBUTION CO .LTD.
             DIBRUGARH
             P.O. DIBRUGARH
             DIST. DIBRUGARH
             ASSAM.
             9:MANORANJAN KALITA
            SUB DIVISIONAL ENGINEER
             BOKO
             ELECTRICAL SUB DIVISION
             APDCL
             P.O. BOKO
             DIST. KAMRUP
             ASSAM.
             ------------

Advocate for : MR H RAHMAN Advocate for : appearing for THE ASSAM STATE ELECTRICITY BOARD AND 8 ORS

BEFORE HONOURABLE THE CHIEF JUSTICE HON BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGEMENT AND ORDER (ORAL) Date : 12-02-2021

(Sudhanshu Dhulia, CJ)

Heard Mr. B.D. Das, learned senior counsel for the writ appellants in Writ Appeal No.350/2019, who is also appearing for the respondents in Writ Appeal No.351/2019. Also Page No.# 4/6

heard Mr. H. Rahman, learned senior counsel appearing for the respondent No.1 in Writ Appeal No.350/2019 and is appearing for the writ appellant in Writ Appeal No.351/2019.

2. These two writ appeals, i.e. Writ Appeal No.350/2019 and Writ Appeal No.351/2019, arise out of the common judgment & order dated 29.03.2018 passed by the learned Single Judge in WP(C) No.1523/2010 and the subsequent order dated 03.05.2019 passed in Review Petition No.185/2018. Whereas the Writ Appeal No.350/2019 is of the employer, Writ Appeal No.351/2019 is of the employee, in whose favour the orders were passed by the learned Single Judge but has challenged the said order only as to the amount and the backwages being given to him.

3. The brief facts of the case are that Sukhen Konwar @ Kanwar, who was at the relevant point of time working as LDA-cum-Cashier in Dibrugarh Electrical Sub-Division Department, was given a charge-sheet on 31.08.2009 and a disciplinary proceeding was initiated against him. The charges were as follows:-

"Charges:- (i) Fraud and Dishonesty.

(ii) Disorderly conduct in connection with business of the UAEDCL/ASEB by your involvement in the theft case of DESD-III on 24/6/09. (A copy of charges made on you enclosed herewith)

(iii) Non deposit of a part of Meter security collected at DESD-III."

4. The charges were proved in a disciplinary proceeding and consequently, the employee was dismissed from service. The dismissal order was challenged by the employee before this Court in WP(C) No.1523/2010.

5. The contentions of the writ petitioner found favour of the learned Single Judge and as the learned Single Judge was of the opinion that due procedure was not followed by the Department while initiating the departmental proceedings, the writ petition was allowed.

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Consequently, the employee was reinstated in service but with only 25% of the backwages.

6. Against the said order, a review petition being Review Petition No.185/2018 was subsequently filed by the employer bringing on record and making out a case that indeed the due procedure was followed and the findings of the learned Single Judge was not correct to that extent. By order dated 03.05.2019, the aforesaid review petition was dismissed as the learned Single Judge was of the opinion that the scope of interference in the review petition is extremely limited even if the principles laid down in Order 47 Rule 1(1) of the CPC are followed. Both the orders passed in WP(C) No.1523/2010 and Review Petition No.185/2018, dated 29.03.2018 and 03.05.2019, respectively, had been challenged by the employer in Writ Appeal No.350/2019. The employee is only aggrieved to the extent of 25% backwages granted to him and he has challenged the same.

7. The case of the employer was that Sukhen Konwar @ Kanwar while working as Accounts Officer/Cashier in Dibrugarh Electrical Sub-Divison-III, Upper Assam Electricity Distribution Company Limited, Dibrugarh, was entrusted with an amount of Rs.5,05,217/-, which he had kept in official locker and the keys of the locker were in his custody. Thereafter, the amount was stolen by none else but by the employee, Sukhen Konwar @ Kanwar, it was alleged, although he tried to camouflage it and tried to make it out as if a theft had taken place. Consequently, a disciplinary proceeding was initiated against him against the aforesaid charges, which have already been referred above.

8. The learned Single Judge was of the view that not only in the disciplinary proceeding there was a procedural irregularity but on merit as well, the prosecution has not been able to make out a case inasmuch as there was a clear cut finding that the employee Sukhen Konwar @ Kanwar was having the keys of the locker and yet it has come out in the enquiry that the locker was found to be broken. The logic derived with this was that in case the employee had the keys of the locker then there was no occasion for him to break the lock. There are other findings as well inasmuch as the learned Single Judge was of the view that the settled procedure to be followed in a disciplinary proceeding is that it is the prosecution which examine its witnesses and an opportunity is given to the delinquent officer to cross-examine Page No.# 6/6

the witness and thereafter, he is asked to give a reply as to the prosecution case against him. But in this case, the delinquent officer was examined first and thereafter the prosecution witnesses were examined. Although in the review petition, the Department had tried to make out a case that this was not the case and indeed three prosecution witnesses were examined. But this did not find favour of the learned Single Judge in the review petition inasmuch as all these records were available, which ought to have been placed before the learned Single Judge when hearing was going on. The Department could not show that they had exercised due diligence and yet could not place the material before the learned Single Judge at the relevant point of time, as the relevant materials were not available earlier. In any case, we are of the view that in a review petition, there is a very limited scope for interference. Therefore, we do not find any fault with the common judgment & order dated 29.03.2018 passed by the learned Single Judge in WP(C) No.1523/2010 and the subsequent order dated 03.05.2019 passed in Review Petition No.185/2018.

9. As far as the writ appeal of the employee Writ Appeal No.351/2019 is concerned, we have also noticed that the learned Single Judge while allowing the writ petition had actually balanced the equities and, therefore, only 25% of the backwages have been awarded. We, therefore, also see no occasion for interference with the order of the learned Single Judge, in the writ appeal of the employee.

10. In view of the aforesaid discussions, both the writ appeals are dismissed.

11. No order as to costs.

                                   JUDGE                       CHIEF JUSTICE
                                                              12.02.2021



Comparing Assistant