Dr. Prabhas Chandra Sarma vs The State Of Assam And 3 Ors
2023 Latest Caselaw 1706 Gua

                                                             Page No.# 1/16

GAHC010107852022




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

                        Case No. : WP(C)/3838/2022

         DR. PRABHAS CHANDRA SARMA
         S/O- LATE PRAFULLA SARMA,
         R/O- P.C HRIDAYALAY, MEHERPUR,
         P.O- MEHERPUR,
         P.S- RANGIRKHARI, SILCHAR,
         DIST- CACHAR, PIN-788005, ASSAM


         VERSUS

         THE STATE OF ASSAM AND 3 ORS
         REP. BY THE COMMISSIONER AND SECRETARY GOVT. OF ASSAM,
         HEALTH AND FAMILY WELFARE DEPARTMENT , DISPUR,
         GUWAHATI- 06

         2:THE DIRECTOR
          GOVT. OF ASSAM
          HEALTH AND FAMILY WELFARE DEPARTMENT
         HENGRABARI

         GUWAHATI

         3:THE ADDL. SECRETARY
          GOVT. OF ASSAM
          HEALTH AND FAMILY WELFARE DEPARTMENT
          DISPUR

         GUWAHATI- 06

         4:THE ACCOUNTANT GENERAL ( A AND E)
         ASSAM
          BELTOLA
          MAIDAMGAON
          GUWAHATI-2
                                                                              Page No.# 2/16


Advocate for the Petitioner   : MR. K N CHOUDHURY

Advocate for the Respondent : MR. D P BORAH(SC, HEALTH)

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM

Date of hearing : 13.03.2023.

Date of judgment :            02.05.2023.




                                JUDGMENT & ORDER (CAV)

Heard Mr. K. N. Choudhury, learned senior counsel assisted by Mr. R. M. Deka,

learned counsel appearing for the writ petitioner. Also heard Mr. D. P. Borah, learned

Standing Counsel, Health & Family Welfare Department, Assam appearing for the

respondent Nos.1, 2 and 3. Mr. A. Hasan, learned Standing Counsel, office of the

Accountant General (A & E), Assam has appeared for the respondent No.4. This writ

petition is being taken up for disposal at the stage of admission hearing with the

consent of both the parties.

2. By filing this writ petition, the petitioner has assailed the order dated 03.11.2021

dismissing him from service on the ground of the alleged misconduct having been

established in the departmental proceeding drawn up against him. The facts of the

case, as projected in the writ petition, are that the petitioner was originally appointed

as a Resident Physician, TID vide order dated 09.01.1990 and posted at the Assam Page No.# 3/16

Medical College & Hospital, Dibrugarh, in which post, he had joined on 12.01.1990.

Since then, the petitioner has been continuously rendering his service under the

Health & Family Welfare Department, Government of Assam. While serving as the

Professor in the Department of Cardiology, Silchar Medical College & Hospital

(SMCH), Silchar, by the order dated 08.12.2016, the petitioner was transferred from

Silchar and posted as Professor of Cardiology in the Gauhati Medical College &

Hospital (GMCH) against a vacant post. However, in the notification dated

08.12.2016, it was mentioned that the petitioner will be attached in the same

capacity at the Fakharuddin Ali Ahmed Medical College & Hospital (FAAMC&H),

Barpeta against the vacant post of Professor of Cardiology Department, GMCH,

Guwahati for the purpose of strengthening of the Cardiology Department of

FAAMC&H, Barpeta. Pursuant to the transfer order dated 08.12.2016 the petitioner

had joined at GMC&H, Guwahati on 23.12.2016 but he did not report for duty at the

FAAMC&H, Barpeta. According to the writ petitioner, he was suffering from various

health problems besides facing some personal difficulties, as a result of which, he

could not report for duty at Barpeta. As per averments made in paragraph 5 of the

writ petition, the petitioner had submitted leave applications seeking earned leave

and medical leave for the period of his absence. The petitioner had also submitted a

representation before the authorities on 30.12.2016, through proper channel,

intimating that his application for availing winter vacation with effect from 01.01.2017

for a period of two months was already under process before the Director of Medical

Education, Assam. On 29.12.2017 the petitioner had submitted another representation

before the respondent No.1, through proper channel, expressing difficulties on health Page No.# 4/16

ground as well as family problems faced by him, with a request to modify the order

attaching him at FAAMCH, Barpeta. In the representation dated 29.12.2017, it was

also mentioned that if the transfer order dated .08.12.2016 cannot be revised by

placing him either at the SMCH or the GMCH then he be allowed to go on voluntary

retirement. The representation dated 29.12.2017 was followed up by similar

representations dated 26.03.2018 and 18.05.2018 wherein, the petitioner had stated

that he was suffering from various diseases which would make it difficult for him to

relocate at Barpeta. During the pendency of those representation submitted by the

petitioner, the respondent No.3 had issued a show cause notice dated 04.01.2020

alleging that the petitioner had remained unauthorizedly absent from duty with

effect from 23.12.2016 leading to serious disruption in patient care and academic

activities. The petitioner was, therefore, asked to explain within seven days, as to why,

a disciplinary proceeding should not be drawn against him.

3. On 09.01.2020, the petitioner submitted his reply to the Show Cause Notice

dated 04.01.2020 explaining his stand in the matter with a request to sanction his

leave as well as the application for voluntary retirement. However, not being satisfied

with the reply submitted by the petitioner, charge-sheet dated 26.11.2020 was served

upon the petitioner under Rule 9(2) of Assam Services (Discipline & Appeal) Rules,

1964 calling upon him to show cause as to why, penalty prescribed under Rule 7

should not be imposed upon him. The writ petitioner had submitted his reply to the

charge-sheet and the statement of allegations appended thereto on 04.12.2020. An

Enquiry Officer was appointed to go into the charge brought against the petitioner.

The Enquiry Officer submitted his report dated 05.05.2021 holding that the allegation Page No.# 5/16

of misconduct brought against the petitioner stood fully established. Based on the

Enquiry Report dated 05.05.2021, the impugned order dated 03.11.2021, imposing

major penalty of dismissal from service with disqualification for future employment,

under Rule 7(vii) of the Assam Services (Discipline & Appeal) Rules, 1964, was imposed

upon the petitioner with immediate effect. Challenging the aforesaid order dated

03.11.2021 the instant writ petition has been filed.

4. Mr. K. N. Choudhury, learned senior counsel appearing for the petitioner has

argued that this is not a case of unauthorized absence from service but a genuine

case where the petitioner, owing to his personal difficulties, could not report for duty

at Barpeta. Mr. Choudhury further submits that the petitioner had submitted

applications seeking leave during the period of absence but the said applications

have not been considered by the authorities in accordance with law. It is also the

submission of Mr. Choudhury that once a request for allowing him to go on voluntary

retirement was made by the petitioner vide his letter dated 29.12.2017, the

respondent authorities were duty bound to consider his request and allow the

petitioner to go on voluntary retirement under F.R. 56(c). The same not having been

done and no order having been passed till date on the request for allowing the

petitioner to go on voluntary retirement, the initiation of the departmental

proceeding leading to the imposition of major penalty of dismissal from service upon

the petitioner is illegal and hence, liable to be declared so by this Court. In support of

his above arguments, Mr. Choudhury has relied upon the law laid down by the

Supreme Court in the case of Dinesh Chandra Sangma vs. State of Assam and others

reported in (1977) 4 SCC 441 and in Union of India and others vs. Sayed Muzaffar Mir Page No.# 6/16

reported in 1995 Supp (1) SCC 76.

5. The learned senior counsel for the petitioner has further argued that although

the respondents have projected that the petitioner was in between, transferred and

posted at the Jorhat Medical College & Hospital, Jorhat, yet, no such transfer order

was ever served upon the petitioner. Under the circumstances, submits Mr.

Choudhury, this is a clear case of harassment being meted to the petitioner for

reasons which were not bonafide.

6. The respondents have not filed any affidavit despite time granted by this court.

However, responding to the arguments made by the petitioner's counsel, Mr. D. P.

Borah, learned Standing Counsel, Health & Family Welfare Department, Assam has

argued that the petitioner has not denied that he had remained absent from duty

continuously since 23.12.2016, without obtaining permission from the departmental

authorities. Such unauthorized absence from duty by the petitioner had disrupted the

functioning of the Cardiology Department in an important Medical College Hospital

besides causing serious disturbance in the academic curriculum of the students

undergoing MBBS courses. It is in such factual backdrop the respondent authorities

were compelled to initiate disciplinary proceeding against the petitioner since he was

unrelenting in his conduct.

7. In so far as the request to allow the petitioner to go on voluntary retirement is

concerned, Mr. Borah has submitted, in his usual fairness, that such request made by

the petitioner had been received but according to the learned standing counsel, an

application for voluntary retirement would have to be considered by the Page No.# 7/16

Government in accordance with law. Mr. Borah further submits that the petitioner did

not submit any formal application seeking voluntary retirement in proper format by

serving proper notice upon the respondents, as a result of which, his request has not

been considered by the authorities till date.

8. I have considered the submissions made by learned counsel for both the sides

and have gone through the materials available on record.

9. Save and except issuance of the transfer dated 31.12.2019 posting the

petitioner at the Jorhat Medical College & Hospital, Jorhat, the facts of this case are

more or less admitted. The entire controversy started since 23.12.2016 when the

petitioner, after joining at the GMCH in terms of the transfer order dated 08.12.2016,

did not report for duty at the FAAMC&H, Barpeta. The petitioner has claimed that he

had made repeated requests either to allow him to go on leave or to go on voluntary

retirement due to the difficult circumstances faces by him on account of health

condition and family life. The learned departmental counsel has not disputed such

claim of the petitioner nor is there anything on record to controvert the same. As

such, this court would have to proceed with the matter by treating such claim of the

petitioner as correct.

10. Since the impugned order dated 03.11.2021 imposing major penalty of

dismissal from service upon the petitioner is under challenge in this writ petition on the

grounds of violation of procedural safeguards by contending that there was no

definite charge brought against the petitioner and the Enquiry Officer went into issues

which were beyond the charge-sheet , it would be necessary for this court to Page No.# 8/16

examine the contents of the Charge-sheet. In the Charge -sheet dated 26.11.2020, it

has been inter-alia alleged that the petitioner had failed to join at Jorhat pursuant to

the transfer order dated 31.12.2019. The relevant portion of the charge-sheet is

quoted herein below for ready reference :-

"...........Whereas, in pursuance of Government notification No.HLB.35/1990/139 dated 08/12/2016, you were transferred and posted at Gauhati Medical College & Hospital against the vacant post of Professor of Cardiology Department and attached in the same capacity at Fakhruddin Ali Ahmed Medical College & Hospital. You were also transferred from Gauhati Medical College & Hospital and posted as Professor, Department of Cardiology in Jorhat Medical College & Hospital vide order No.HLB.217/ 2019/269-B dated 31.12.2019, but you did not join at Jorhat Medical College & Hospital;........"

11. However, the Statement of Allegations does not refer to absence from duty at

the Jorhat Medical College & Hospital, Jorhat. The Statement of Allegations made in

the charge-sheet is reproduced herein below for ready reference :-

"While you were serving as Professor of Cardiology, Gauhati Medical College & Hospital attached to Fakharuddin Ali Ahmed Medical College & Hospital, you remained unauthorizedly absent for long periods from your duties and submitted applications for leave which have not been recommended by Principal-cum-Chief Superintendent, Gauhati Medical College & Hospital/ Fakharuddin Ali Ahmed Medical College & Hospital and Director of Medical Education, Assam."

12. It will be significant to note here-in that according to the petitioner, no such

order of transfer dated 31.12.2019 posting him at JMCH, Jorhat was ever served upon

him. A copy of the letter dated 12.01.2022 issued by the Senior Accounts Officer, Page No.# 9/16

Office of the Accountant General (A&E) Assam, addressed to the Principal-cum-

Chief Superintendent, Jorhat Medical College & Hospital has been annexed to the

writ petition as Annexure-L. A perusal of the communication dated 12.01.2022 goes

to show that the transfer order dated 31.19.2019 was never formally issued by the

department. The aforesaid letter substantiates the claim of the writ petitioner that the

transfer order dated 31.12.2019 was never served on him. Notwithstanding the same

and despite the fact that the statement of allegation did not contain any imputation

regarding the petitioner failing to join at Jorhat, such allegation has been made in

the charge -sheet. Not only that, the Enquiry Officer had recorded categorical

findings in the Enquiry Report dated 05.05.2021 to the effect that upon receipt of the

Show-Cause Notice dated 04.01.2020 the petitioner became aware of his transfer to

Jorhat and therefore, by not complying with such transfer order, the writ petitioner

has committed misconduct of insubordination, thus violating clause 3(1) of the Assam

Civil Services (Conduct) Rules 1965. The above finding of the Enquiry Officer, in the

opinion of this court, is wholly untenable in the eyes of law firstly on account of the

fact that, unless a transfer order is properly served upon an employee, he or she

cannot be expected to comply with the same. Secondly, contrary to the findings

recorded by the Enquiry Officer in the report dated 05.05.2021, there is no reference

to the transfer order dated 31.12.2019 in the Show-Cause Notice dated 04.01.2020.

The transfer order dated 31.12.2019 finds mention for the first time in the Charge -

Sheet dated 26.11.2020 served upon the petitioner in the departmental proceeding.

The petitioner could not have complied with a transfer order merely based on a

reference to the same in the Charge-Sheet, far less defend himself on a vague Page No.# 10/16

allegation of non-compliance of the same leading to alleged misconduct.

13. Law is well settled that charge must be definite and specific. It is not permissible to

hold departmental enquiry on vague charges as the same do not give a clear

picture to the delinquent to make out an effective defense. [ see Anant R Kulkarni v

Y.P.Education Society reported in (2013) 6 SCC 515 ].

14. Law is equally well settled that Enquiry Officer is not permitted to travel beyond

the charges. Any punishment imposed on the basis of a finding which was not the

subject matter of the charge is wholly illegal [see Narinder Mohon Arya v United India

Insurance Company Ltd. And Others reported in (2006) 4 SCC 713 ]

15. In the present case, as noticed above, not only are the allegations brought

against the petitioner found to be vague, even the findings of the Enquiry Officer are

found to be perverse. Not only that, the Enquiry Officer had travelled beyond the

charge and found the writ petitioner guilty of misconduct for seeking voluntary

retirement in lieu of his prayer for modification of the transfer order 08.12.2016 by

holding that the same amounts to insubordination although no such charge was

brought against the petitioner either in the charge sheet or the in the statement of

allegation. The order dated 03.11.2021 imposing the major penalty of dismissal from

service was evidently based on such finding of the Enquiry Officer on the question of

alleged misconduct which did not form part of the charge-sheet or the statement of

allegation thereby having a vitiating effect on the order dated 03.11.2021.

16. It is also to be noted here in that the petitioner has taken a specific stand that

the order dated 03.11.2022 imposing the order of penalty of dismissal from service Page No.# 11/16

was never served upon him and he became aware of the said order only from the

communication dated 12.01.2022 issued by the Senior Accounts Officer. The learned

Departmental Counsel could not rebut such assertion of the petitioner by placing

cogent materials before this court. It is therefore, evident that the departmental

proceeding conducted against petitioner is in clear violation of the procedural

safeguards available to him as well as the principles of natural justice. As such, the

order of penalty dated 03.11.222 issued on the basis of Enquiry Report dated

05.05.2021 is clearly unsustainable in law and hence, liable to be set aside by this

court.

17. Having held as above, this court would now examine the plea raised by the

writ petitioner that in view of Fundamental Rules 56(c) he ought to have been

deemed to have voluntarily retired from service based on his application/

representation dated 29.12.2017. There is no dispute in this case that FR 56 (c) will be

applicable in the case of the petitioner. FR 56 (c) reads as follows :-

" FR 56(c) - Any Government Servant may, by giving notice of not less than

three months in writing to the appropriate authority, retire from service after

he has attained the age of fifty years or has completed 25 years of service,

whichever is earlier"

18. In the present case, the request made by the petitioner either to modify the

transfer order or to allow him to go on voluntary retirement was made in writing on

29.12.2017,addressed to the Commissioner to the Government of Assam, Health &

family Welfare Department who is the appropriate authority to consider the same. His Page No.# 12/16

request to allow him to go for voluntary retirement was communicated formally to the

departmental authorities. The same was un-equivocal and had been reiterated in the

subsequent representation dated 18.05.2018 as well as in his reply to the show cause

notice submitted on 09.01.2020. There is no dispute in this case that on the date of

submission of his request to go for voluntary retirement, the petitioner had completed

more than twenty five years in service and was also more that 50 years old. As such,

the petitioner did fulfill the requirement of FR 56 (c) in so far his eligibility to apply for

voluntary retirement is concerned. Notwithstanding the same, the respondent

authorities had remained silent on his request to go on voluntary retirement. Although

Mr. Bora has submitted that the application for voluntary retirement was not

submitted by the writ petitioner in proper format, yet, such argument could not be

substantiated by the learned departmental counsel by producing any relevant

material before the court. Therefore, the key issue that would arise for consideration

of this court in the present case is as to whether, in view of the provision of FR 56(c)

the request for allowing him to go on voluntary retirement made by the petitioner

had automatically taken effect under the law on the expiry of three months notice

period from the date of serving the notice of such intent or was there any

requirement under the law for the Government to accept such a request by issuing

any further order ?

19. An issue of similar nature had arisen before the Supreme Court in the case of

Dinesh Chandra Sangma (supra) relied upon by Mr. Choudhury wherein, appellant

therein, who was a member of the Assam Judicial Service, Grade-I , after attaining

the age of 50 years , had served a notice declaring his intention to go for voluntary Page No.# 13/16

retirement under FR 56 (c ) due to some domestic reasons. The request was initially

accepted by the Government pursuant whereto, the High Court had also allowed

him to go on one month's leave preparatory to his retirement with effect from July 2,

1976, on which date he had relinquished charge of office. Subsequently, the

Government retraced its step as above and by the order dated 28.07.1976,

countermanded its earlier order dated 01.07.1976 allowing the appellant to go on

voluntary retirement. The High Court had also concurred with such decision of the

Government and by order dated 31.07.1976, the appellant was transferred from

Dibrugarh to Dhubri. The appellant did not join at Dhubri and instead, submitted

representation to the Government and to the High Court to recall the order of

revocation of permission to go on voluntary retirement and his transfer. While the

Government by order dated 04.12.1976 declined his prayer, the High Court by order

dated 31.07.1976 had directed the appellant to join at Dhubri within 10 days, failing

which disciplinary action would be initiated against him. Aggrieved thereby, the

appellant had approached the High Court on the judicial side under Article 226 of

the Constitution seeking a writ of certiorari setting aside the Government order dated

28.07.1976 and the order of the High Court dated 31.07.1976 issued on the

administrative side. The High Court dismissed the writ petition by holding that

application under FR56(c) was subject to compliance with clause (3) of Rule 119 of

DISI Rules 1971. Allowing the appeal filed by the aggrieved employee against the

order of the High Court the Supreme Court has held as follows :-

"17. The High Court committed an error of law holding that consent of the Government was necessary to give legal effect to the voluntary retirement of Page No.# 14/16

the appellant under F.R. 56(c). Since the conditions of F.R. 56(c) are fulfilled in the instant case, the appellant must be held to have lawfully retired as notified by him with effect from August 2, 1976."

20. By relying on the law laid down in the case of Dinesh Chandra Sangma (supra)

it was further held in the case Union of India and Others v Sayed Muzaffar Mir

reported in 1995 Supp (1) SCC 76 that when a Government servant seeks premature

retirement under FR 56 (c) it does not require any acceptance and the retirement

comes into effect on completion of the notice period.

21. The law laid down by the Supreme Court in the case of Dinesh Chandra

Sangma (supra) and Sayed Muzaffar Mir (supra) leaves no room for doubt that once

an application for voluntary retirement is received by the authorities, subject to

fulfillment of the conditions laid down in FR 56 (c), the same will take effect

automatically on completion of the notice period and there would be no

requirement for communicating acceptance of such application for the

Government. In a case where no notice period is clearly spelt out in the application,

the application for voluntary retirement must be deemed to take effect upon expiry

of the statutory period of three months as provided under FR 56 (c). In other words,

once an application for voluntary retirement is received from an employee who has

attained the age of 50 years or has completed 25 years of service, his/her request for

voluntary retirement would come into effect automatically on expiry of the notice

period and there would be no further requirement under the law for the employer to

specifically accept such request of the employee.

22. In the present case, as noted above, the petitioner fulfills the conditions laid Page No.# 15/16

down in FR 56 (c) for making a request for voluntary retirement and his request has

also been received by the Government prior to initiation of the departmental

proceeding by serving the charge -sheet dated 26.11.2020. The department neither

declined his request for voluntary retirement nor called for any further information but

simply ignored his request by remaining silent over the matter. The petitioner was

subjected to the departmental proceeding by treating him on service ever after

expiry of three months from the date of receipt of the formal request to allow him to

go on voluntary retirement. Under the circumstances, this court is of the opinion that

the departmental authorities had committed a serious error in initiating the

departmental proceeding against the petitioner by treating him to be in service while

ignoring his application for voluntary retirement.

23. In so far as the allegation of absence from duty by the petitioner prior to his

premature retirement is concerned, it is no doubt correct that such period of

absence would be liable to be dealt with by the authorities in accordance with law.

However, it also appears that the petitioner had submitted a number of applications

seeking earned and medical leave for the period of absence, through proper

channel, but no action has been taken by the departmental authorities on such

application. Therefore, the respondents are required to consider the applications

submitted by the petitioner for leave during the period of his absence prior to the

date of voluntary retirement and pass appropriate order therein as per law.

24. For the reasons stated here-in above, the impugned order dated 03.11.2021 is

hereby set aside. However, in view of the finding recorded by this court to the effect Page No.# 16/16

that the petitioner be deemed to have retired from service based on his application

for voluntary retirement, no direction for his reinstatement in service is called for in this

case. The respondent Nos 1, 2 and 3 are, however, directed to examine the records

and pass consequential order(s), in the light of the observations made here-in above,

inter-alia notifying the actual dated of retirement of the petitioner, the fate of his

applications seeking leave during the period of absence from duty prior to his

retirement and also the retirement benefit that the petitioner would be entitled to

under the law. The aforesaid exercise be carried out and completed within a period

of 4 (four) weeks from the date of receipt of a certified copy of this order.

The writ petition stands allowed to the above extent.

There would be no order as to cost.

JUDGE

T U Choudhury

Comparing Assistant