Bijoy Bose vs The State Of Assam And 5 Ors
2021 Latest Caselaw 2531 Gua

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GAHC010016712018




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

                           Case No. : WP(C)/724/2018

         BIJOY BOSE
         S/O LT. BRAJEN CHANDRA BOSE
         R/O VILL- SALBARI, WARD NO. 25
         P.O. AND P.S. BONGAIGAON
         DIST. BONGAIGAON, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REP.BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR,
         GUWAHATI-6

         2:THE COMMISSIONER

          PANCHAYAT AND RURAL DEVELOPMENT OFFICE
          JURIPAR
          PANJABARI
          GUWAHATI -37.

         3:THE PROJECT DIRECTOR

          DISTRICT RURAL DEVELOPMENT AGENCY
          BONGAIGAON.

         4:ASSISTANT PROJECT OFFICER

         (TECHNICAL)
         DISTRICT RURAL DEVELOPMENT AGENCY
         BONGAIGAON.

         5:THE BLOCK DEVELOPMENT OFFICER
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              DANGTOL DEVELOPMENT BLOCK
              BIDYAPUR

Advocate for the Petitioner   : MR A DASGUPTA

Advocate for the Respondent : GA, ASSAM




                                    BEFORE
                   HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                            ORDER

26.10.2021 Heard Shri A. Dasgupta, learned counsel for the petitioner. Also heard Ms. M.D. Borah, learned State Counsel for the respondent No. 1, Shri M. Nath, learned Standing Counsel, Panchayat & Rural Development Department for the respondent Nos. 2, 4, 5 & 6 and Shri A. Hassan, learned Standing Counsel, AG for the respondent No. 3.

2. Considering the subject matter of dispute and the fact that the affidavit-in-opposition has been filed by the contesting respondent No. 2, which is also supported by production of the original records, this Court has taken up the writ petition for disposal at the admission stage.

3. The petitioner was serving as the Secretary of the Kakragaon Gaon Panchayat under the Dangtol Development Block in the district of Bongaigaon. On 02.09.2015, an F.I.R. was lodged against the petitioner by the Block Development Officer alleging misappropriation and anomalies on the part of the petitioner while preparing the list of beneficiaries under the Indira Awaas Yojna for the year of 2014-15. Allegations of manipulation of official procedure whereby release of substantial amount each of the beneficiaries as the first installment was

made. In the said criminal case, the learned Chief Judicial Magistrate 1 st Class, Bongaigaon vide a Judgment & Order dated 25.08.2017 however had acquitted the petitioner from all the charges in the case registered as G.R. Case No. 850/2015 (Bongaigaon P.S. Case No. 727/2015) under Section 409 / 420 of the Indian Penal Code.

4. It is the case of the petitioner that thereafter he was placed under suspension and a preliminary enquiry was conducted against him which culminated in the enquiry report dated Page No.# 3/5

17.06.2016. In the said enquiry, the findings were in favour of the petitioner that he was not involved in the anomalies. However, vide the impugned order dated 28.03.2017, the disciplinary authority had imposed a penalty upon the petitioner an order for recovery of an amount of Rs.3,56,250/- with an additionally penalty of withholding one annual increment without cumulative effect. The aforesaid penalties were said to be imposed in exercise of the powers conferred by Rules 7 (ii) & 7 (iii) of the Assam Services (Discipline & Appeal) Rules, 1964 (hereinafter called, Rules). It is the legality and validity of the entire proceedings culminating in the impugned order dated 28.03.2017 which is the subject matter of challenge in the present writ petition.

5. Shri Dasgupta, learned counsel for the petitioner submits that while Rule 7 of the Rules of 1964 has been taken recourse to, the authorities have totally lost sight of the other provisions of the Rules which laid down a detail procedure, which is mandatorily required to be adopted in case there is any allegation against a Government servant. By drawing the attention of this Court to the Rules of 1964, the learned counsel has submitted that while Rule 7 is on the nature of penalties, the procedure for imposing the penalties has been laid in Rule 9 which requires framing of definite charges, giving the delinquent an opportunity to show cause to the said charges and in the event of not being satisfied with the explanation, a departmental enquiry is required to be conducted by giving the delinquent all necessary safeguards. However, in the instant case, nothing has been done in that regard which makes the impugned order 28.03.2017 non est in law. The learned counsel further submits that there is no discussion, whatsoever as to why the findings of the preliminary enquiry dated 20.05.2016 in which the petitioner was held to be innocent has not been taken into consideration. It is accordingly submitted that the impugned action is required to be interfered with as the same is fully unsustainable in law.

6. Shri M. Nath, learned Standing Counsel, P & RD Department has produced the records of the case in original. The learned Standing Counsel has fairly submitted that though the records contain a report dated 21.01.2017 in which the allegations against the petitioner has been held to be proved, there is nothing on record to show that any definite charges / allegations were leveled against the petitioner requiring him / affording him an opportunity to explain the same. A bare perusal of the report dated 21.01.2017 also reveals that simply the Page No.# 4/5

statements of the petitioner and two other persons were recorded and without there being any cross-examination of the witnesses, the findings regarding the guilt of the petitioner was arrived at. The enquiry officer has even gone to the extent of prescribing the nature of penalty which is required to be imposed upon the petitioner.

7. There is nothing on record to show that the copy of the enquiry report was furnished to the delinquent which is a mandatory requirement, which in common parlance is known as the "second show cause notice" and on this ground itself, the entire proceedings is liable to be set aside.

8. However, non furnishing of the enquiry report is not the only ground which requires interfere of the Court. In the instant case, from the very inception, the law holding the field appears to be wholly overlooked as no charges / allegations were framed against the petitioner which is first requirement and no opportunity was given to the petitioner to put forward his explanation. Secondly, it is seen that without coming to a preliminary finding of guilt against the petitioner, an enquiry was conducted which appears to be a sham enquiry in which there has been gross violation of the requirements laid down in Rule 9 of the Rules, 1964. The findings favorable to the petitioner which were there in the preliminary enquiry report dated 20.05.2016 has also been ignored without any discussion and the disciplinary authorities have passed the impugned order dated 28.03.2017 by simply endorsing the findings of the so called enquiry and had imposed the penalty even without giving the petitioner an opportunity to pursuing the disciplinary authority to take a view other than the view taken by the enquiry officer.

9. As stated earlier, while the disciplinary authority has taken recourse to Rules 7 (ii) & 7

(iii) of the Rule, 1964, the other requirement of the Rules mainly Rule 9 have been conveniently ignored / overlooked. The present case appears to be one wherein there has been gross violation of the procedural safeguards which are required to be given to a delinquent employee and there has been violation of the principles of natural justice. Under the aforesaid facts and circumstances, this Court is of the unhesitant opinion that the impugned action culminating in the impugned order dated 28.03.2017 is not sustainable in law and accordingly the same is set aside and quashed.

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10. The recovery from the petitioner, if made in the meantime, has to be repaid to the petitioner along with the interest at the admissible rate.

11. The writ petition is accordingly disposed of.

12. The records of the case in original are returned back to the learned Standing Counsel, P & RD Department.

JUDGE

Comparing Assistant