Ranjit Patowary vs The State Of Assam And 4 Ors
2022 Latest Caselaw 2631 Gua

                                                                  Page No.# 1/8

GAHC010099032019




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

                        Case No. : WP(C)/3016/2019

         RANJIT PATOWARY
         S/O. DHANESWER PATOWARY, VILL. KETEKIBARI, P.O. BARAMBOI, P.S.
         HAJO, DIST. KAMRUP, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 4 ORS.
         REP. BY THE COMMISSIONER OF TRANSPORT, GOVT. OF ASSAM, DISPUR,
         GUWAHATI-06, ASSAM.

         2:THE ASSAM STATE TRANSPORT CORPORATION
          REP. THROUGH ITS MANAGING DIRECTOR
          PALTANBAZAR
          GUWAHATI-781008
         ASSAM.

         3:THE DIVISIONAL ENGINEER CUM DIVISIONAL SUPERINTENDENT

          ASTC CITY SERVICE
          RUPNAGAR
          GUWAHATI
          ASSAM.

         4:THE STATION SUPERINTENDENT

          ASTC CITY SERVICE
          NOONMATI
          GUWAHATI-20
          ASSAM.

         5:THE INQUIRY OFFICER AND APO I/C.
                                                                       Page No.# 2/8

             ASSAM STATE TRANSPORT CORPORATION
             HEADQUARTER
             PALTANBAZAR
             GUWAHATI-781008
             ASSAM

Advocate for the Petitioner    : MR. P SAIKIA

Advocate for the Respondent : SC, TRANSPORT

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 01-08-2022

JUDGMENT & ORDER (ORAL)

Heard Ms. M Das, learned counsel for the petitioner, Ms. MD Bora, learned Junior Government Advocate for the respondent No. 1 and Mr. J Roy, learned senior counsel appearing for the respondents in the Assam State Transport Corporation (in short ASTC).

2. The petitioner is a conductor in the ASTC and he was appointed as a driver-cum-conductor on contractual basis at a monthly remuneration of Rs. 6,000/- per month. By an order of 12.03.2018 of the Managing Director of ASTC, the petitioner was placed under suspension subject to payment of subsistence allowance. The order of 12.03.2018 provides that it had been revealed from a report dated 16.02.2018 of the Chief Vigilance Officer, ASTC that while conducting a surprise check in the Khanapara to Dimu via Kachari passenger service Bus No. AS 20/1823 at Walford at about 1.40 p.m., the checking officer found that the bus conductor namely Sri Ranjit Patowary, who was driver-cum-conductor had carried 74 numbers of passengers. On a query, the conductor did not produce the time sheet of the service with a mala-fide intention to misappropriate/steal the revenue of the corporation for his personal Page No.# 3/8

gain. Accordingly, a departmental proceeding was contemplated. The order of suspension provides that such alleged act on the part of the petitioner attracted penalties subject to drawal of departmental proceeding as per provisions of the Assam Services (Discipline and Appeal) Rules, 1964 (in short Rules of 1964) read with Regulation 82 of the Assam State Transport Corporation Employees Service Regulation, 1971 (in short Regulation 1971) for violation of Rule 3 of the Assam Civil Services (Conduct) Rules, 1965. Accordingly, a show cause notice dated 24.05.2018 was issued to the petitioner under Rule 9 of the Rules of 1964 read with Regulation 82 of the Regulation 1971 as to why any of the penalties prescribed under Rule 7 of the Rules of 1964 should not be imposed on the petitioner.

3. The Charge No. 1 as per the show cause notice is that when the vehicle of the petitioner was checked at Walford around 12.30 p.m. on 12.02.2018, 74 numbers of passengers on board were found and upon the enquiry of the Vigilance team, the petitioner could not produce the time sheet of the service. The Charge No. 2 is that on 12.02.2018, the petitioner ought to have obtained the time sheet prior to the departure of the service, but he did not do so and performed duties without time sheet. The Charge No. 3 is that the aforesaid act on the part of the petitioner amounted to a gross misconduct.

4. The statement of allegation against the petitioner accompanying the show cause notice is that on 12.02.2018 when the bus of the petitioner was checked at Walford at around 12.40 p.m., 74 numbers of passengers on board were found and the petitioner could not produce the time sheet when asked by the Vigilance. In his reply dated 31.05.2018 to the show cause, the petitioner denied the allegation of not producing the time sheet and illegally carrying 74 numbers of passengers in the bus No. AS20/1823 on 12.02.2018 and that such Page No.# 4/8

allegation was false and concocted.

5. The petitioner in his reply stated that on 12.02.2018, the Vigilance had stopped the bus at Walford and asked the petitioner about issuance of ticket and took the time sheet without it being signed and without endorsing any remarks and the Vigilance had directed the petitioner to leave the bus. The petitioner also denied that certain persons namely Rohon Perves, Debojit Das, Koushik Kar, Banjit Bora, Manash Jyoti barman and Dipak Choudhury were the persons who had accompanied the Assistant Engineer and in fact the Assistant Engineer was accompanied by only one person, whose name the petitioner does not know.

6. By an order of 29.06.2018, the Managing Director of the ASTC on being not satisfied with the reply of the petitioner in his written statement, appointed Smti Prarthana Bardoloi (ME), Assistant Personnel Officer-II, ASTC as the enquiry officer to enquire in to the allegations. Accordingly, the enquiry officer issued the communication dated 27.09.2018 to the petitioner for the purpose of giving deposition along with any documents that the petitioner may desire to rely upon. In the aforesaid circumstance, the order dated 30.11.2018 was passed by the Managing Director, ASTC stating that he had read the reply of the petitioner, which is understood to be the written statement submitted against the show cause notice. The Managing Director in his order further provides as extracted:-

"It is alleged that on 12.02.2018 while Shri Ranjit patowary, Driver cum conductor (Contractual) was conducting the passengers service from Khanapara to Dimu Via kachari with allotted vehicle No. AS-20/1823 (base Noonmati) was checked by the vigilance team, ASTC, Head Office, Guwahati at Woford around 1.40 p.m. and found 74(seventy four) number of passengers on board and all 74 (Seventy four) number of passengers were carried without tickets. After that the vigilance team was directed him to handover/produce the tie sheet of the Page No.# 5/8

said respective passengers service but he did not produce/handover the time sheet on the checking spot for which the vigilance team could not give remarks on the body of the time sheet on that day. As, Shri Patowaary, Driver cum conductor (Contractual) was allotted to conduct the passengers service his duty bound to carry the Time Sheet prior conducting the passengers service which is valuable document of the Corporation but he did not care and performed the service without time sheet with a malafide intention to misappropriate/ stealing of the revenue of the corporation for his personal gain. Such act on the part of the contractual Driver is criminal offence and thereby violation of Rule 3 of the Assam Civil Services (Conduct) Rules, 1965."

7. A reading of the extracted portion goes to show that the Managing Director had merely reiterated the allegation against the petitioner in the show cause notice and was of the view that such act on the part of the petitioner was a criminal offence, which violated Rule 3. No mention is made about any enquiry report or any such document that may have been submitted by the petitioner before the enquiry officer, who was appointed for the purpose. Being aggrieved, this writ petition is instituted.

8. Mr. J Roy, learned senior counsel for the respondents in the ASTC has produced the records. The records do not indicate any enquiry report of any kind. The records provide for a statement by the Vigilance team which again reiterates the allegations made in the show cause notice. The statement of the Vigilance team is followed by a question by the petitioner, which in the English translation would mean that 'you have been provided with the time sheet as desired; why are you saying that I have not given it'. Then the question by the petitioner follows by an answer purportedly by the Vigilance Team saying that 'you are making a false statement that the time sheet had been given'.

9. We have noticed that the core allegation in the show cause notice 24.05.2018 is that the petitioner had carried 74 numbers of passengers in the bus concerned without valid tickets and when being asked, he could not give Page No.# 6/8

the time sheet. If it is so, it is for the departmental authorities to first prove the allegation in the enquiry proceeding before the enquiry officer and thereafter call the petitioner for his reply thereof. But a reading of the communication dated 27.09.2018 from the enquiry officer goes to show that the enquiry officer had followed the reverse procedure requiring the petitioner to appear before the enquiry on 03.10.2018 at 1.00 p.m. for the purpose of giving his deposition along with documents meaning thereby that the delinquent was asked to disprove the allegation against him without the disciplinary authority first proving the allegation before the enquiry officer.

10. The entire procedure appears to be in conflict with the required procedure. We have further taken note of that the show cause notice was under Rule 9 of the Rules of 1964 along with Regulation 82 of the Regulation 1971. The aforesaid conduct of the respondent authorities in proceeding with the disciplinary proceeding against the petitioner is sought to be justified by relying upon a pronouncement of this Court rendered in WP(C) No. 724/2007 in its judgment dated 26.06.2014. Reliance is placed upon paragraph 14 of the said order, which is extracted below:-

"14. In view of the above discussions it becomes explicit that the termination of the petitioner was not an arbitrary act without adhering to the principles of natural justice. Show-cause notice was issued to the petitioner and he did submit his explanation. Contents of the explanation fully justify the order of termination. It is to be seen that the nature of enquiry that is required to be don e in respect of civil servants and Article 311 of the Constitution need not necessarily be adhered to the contractual employees. However the contractual employees are not governed by service rules; they are governed by the terms of the appointment order. However in order to obviate the arbitrary terminations if any employee under the Scheme got to be terminated on the ground of misconduct a formality of opportunity should be given to the employee to know the nature of misconduct and considering his explanation a summary enquiry can be held. However a full fledged enquiry contemplated in Page No.# 7/8

respect of civil servants need not apply in holding such enquiry; only the spirit of principles of naturals has to be complied. In this case there has been substantial compliance of principles of natural justice and that petitioner has been notified the nature of misconduct and considering his explanation and other reports he has been arbitrarily terminated. There does not appear to be any arbitrariness or illegality on the part of the disciplinary authority. Accordingly the writ petition is dismissed.

11. The extracted paragraph 14 of the order of this Court provides that in the case of a contractual employee, the procedure prescribed under Article 311 of the Constitution of India need not be adhered to and the contractual employees are also not governed by any Service Rules, whereas they are governed by the terms of their appointment orders. But, however, in order to avoid arbitrary terminations, on the ground of misconduct, a formal opportunity should be given to the employees to know the nature of the misconduct and considering his explanation, a summary enquiry can be held.

12. Even if the proposition of paragraph 14 of the order dated 26.06.2014 is said to be applicable in the present case, at least a summary enquiry is required to be held and the summary enquiry would definitely include the confronting delinquent with the materials that the disciplinary authority sought to rely upon to justify the allegation made against him and give adequate opportunity to the delinquent to have his reply against such material including the opportunity to cross examine the authors of such material. Even if we go by the provisions of paragraph 14 of the order of this Court in WP(C) No. 724/2007, the minimum requirement provided therein had also not been followed in the present case.

13. Be that as it may, paragraph 14 may be an enabling provision allowing the authorities to embark upon a summary proceeding. But in the instant case, on their own volition, the respondent authorities thought it appropriate to initiate a proceeding under Rule 9 of the Rules of 1964, which itself is an elaborate Page No.# 8/8

procedure. No material is available as to at what stage the respondent authorities had withdrawn the show cause notice under Rule 9 of the Rules of 1964 and had proceeded with the matter in a summary manner, if they want to rely upon paragraph 14 of the order of this Court in WP(C) No. 724/2007.

14. In view of the aforesaid infirmities, the order of termination against the petitioner dated 30.11.2018 is set aside. However, as the interference is on a technical ground, the respondents are given the liberty to proceed against the petitioner, if so advised by following the appropriate procedure of law as may be applicable in the present case, to the wisdom of the respondent authorities.

15. Regarding the period between the order of termination and the order of interfering with the termination by this Court, the petitioner shall be deemed to have been under suspension with the benefits that he may be entitled for during the suspended period.

The writ petition is allowed to the extent as indicated above.

JUDGE

Comparing Assistant