Gauhati High Court
WP(C)/2555/2020 on 19 October, 2023
GAHC010086242020
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRITPETITION (C) NO. 2555/2020
Sri Suresh Das, aged 43 years,
Son of Jogeswar Das,
Resident of Amar Path, Geetanagar,
Bamunimaidan, P.S. Geetanagar, Guwahati,
District-Kamrup(M), Assam-781021
........Petitioner
-Versus-
1. The State of Assam,
Represented by the Commissioner & Secretary to
the Govt of Assam, Education (Higher) Department,
Dispur, Guwahati- 6.
2. The Director of Higher Education
Department, Assam Kahilipara, Guwahati-19.
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3. The Joint Director of Higher Education
Department, Assam, Kahilipara, Guwahati-19.
4. The Deputy Director of Higher Education
Department, Assam, Kahilipara, Guwahati-19.
5. The Principal, Lalit Chandra Bharali College,
Maligaon, Guwahati-12, Assam.
6. The Governing Body, Lalit Chandra Bharali
College, Maligaon, Guwahati-12, Assam.
........Respondents
:: BEFORE::
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
For the Petitioner : Mr. B.P. Borah, Advocate
For the Respondents : Mr. A.R. Tahbildar, SC,
Higher Education for
Respondents No. 1 to 4
: Mr. S Muktar, Advocate for
Respondents No. 5 & 6
Date of Hearing : 12.06.2023
Date of Judgment : 19.10.2023
JUDGMENT & ORDER (CAV)
This writ petition has been filed by the petitioner challenging the
termination order dated 03.10.2017 as well as the resolution dated
23.02.2016 adopted by the Governing Body of Lalit Chandra Bharali College
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whereby it was resolved to terminate the petitioner from service without
affording any opportunity of hearing. The further prayer of the writ
petitioner is for issuance of mandamus directing the authority to release
the arrear salary of the petitioner with effect from 2011 till the date of his
termination i.e. 03.10.2017.
2. The petitioner was appointed in the post of a bearer (Mali) in the
Lalit Chandra Bharali College, Maligaon in the scale of pay of Rs 900/- to
Rs. 1435/- by letter No. LCBC/NTS/24(C)223/94 dated 01.12.1994 issued
by the Principal, Lalit Chandra Bharali College, Maligaon, Guwahati.
3. The appointment of the petitioner was provisionally approved by the
Joint Director of Higher Education Department, Government of Assam.
Thereafter, a special body of the Lalit Bharali College in its meeting held on
23.05.2000 resolved to confirm the services of the petitioner and to open a
CPF account in the name of the petitioner. Since his date of appointment,
the petitioner has put into his service to the satisfaction of all concerned
without any blame or blemish.
4. The learned counsel for the petitioner submits that while he was
serving in the capacity under the said college, he suffered from severe viral
hepatitis since 02.09.2008 and was under treatment and care of a doctor
who advised him rest for a period of three months. Although the petitioner
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regained his physical stability and resumed his services in the college and
he was working till December 2009. However in the month of January
2010, the health of the petitioner deteriorated due to several other
deceases like hepatic dysfunction, Jaundice, pancreatitis, Rectal bleeding
etc as a result of which he was undergoing treatment from 06.01.2010 to
13.04.2011. The learned counsel for the petitioner has referred to medical
certificates enclosed to the writ petition in support of his contention.
5. Pursuant to his recovery, the petitioner made a representation before
the Principal, Lalit Bharali College, Maligaon being respondent No. 5 herein
on 18.04.2011 by enclosing medical certificate and submitted that because
of the severe health problems he was absent from his duties and as he has
recovered from his illness, he represented before the Principal to allow him
to join in his regular service. However, the authorities of the college did not
consider the prayer of the petitioner and did not permit him to join his
normal duties. His salaries have been stopped by the college authorities
with effect from January 2010. Inspite of several representations, the
petitioner was not allowed to join in his regular post and the salary also
was not released. Similar representation was also made before the Director
of Higher Education Department, namely respondent No 2, requesting him
to direct the College Authorities to permit him to rejoin his permanent post
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in the College. The learned counsel for the petitioner submits that in
response to the letter issued by the Deputy Director, Higher Education
Department to the college authorities by communication dated 12.04.2017
issued by the college authorities and a copy of which was available to the
petitioner, it is mentioned that no departmental proceeding was initiated
against the petitioner nor any enquiry officer was appointed nor any such
report is available.
6. Being thus situated, the petitioner was surprised to receive a show
cause notice dated 06.06.2017 issued by the Director of Higher Education
asking the petitioner to show cause as to why he had remained absent
from normal duties from time to time w.e.f 01.10.2003 and that too
without information and inspite of several notices sent by post and through
local news papers, he was conspicuous by his absence. Although the
college authorities on humanitarian grounds granted all possible leave to
the petitioner inspite of that the petitioner remained absent without any
authority and therefore he was charged with dereliction of duty and
unauthorized absence. He was further asked to show cause that inspite of
his absence he was given his full salary on humanitarian ground and the
college authority after examining the pros and cons of the application
refused to allow his prayer for rejoining in the college and subsequently by
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resolution adopted on 23.02.2016, the Governing Body of the LCB College
unanimously resolved to terminate the petitioner from his services due to
extreme irregularities and insubordination to the authority. The show cause
notice was accompanied by statement of allegation which contained the
show cause notice served on him by post and by local news papers, report
of the principle, Governing body resolution and hearing held on
29.08.2016.
7. The petitioner replied to the show cause notice giving his reasons for
the absence and denied that the allegation of dereliction of duty and
unauthorized absence was correct or based on correct facts. He further
submitted that he did not receive any show cause notice issued by the
Principal or the Governing Body prior to the resolution dated 23.02.2016.
He further stated that the said resolution No. 13 dated 23.02.2016 of the
Governing Body of LCB College removing him from service violated the
provision of the Assam Services (Discipline and Appeal) Rules 1964 and the
principle of natural Justice.
8. Thereafter, the Director of Higher Education vide impugned order
dated 03.10.2017 passed the order of terminating the service of the
petitioner. In the said order which was impugned in the present writ
petition, it is mentioned that the petitioner did not submit any medical
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report along with his show cause reply and therefore, the college
authorities were justified in terminating the services of the petitioner as it
cannot wait for an employee who was absent for 9 to 10 years. The
charges of long absence have been held to be proved.
9. The respondent/College Authority contested the case by filing an
affidavit denying the contentions raised by the petitioner. The affidavit
contained the resolution which was adopted on 23.02.2016, show cause
notice dated 06.06.2017, order dated 03.10.2017 and communication
dated 23.11.2020, whereby the consolidated statement of records of
unauthorized absence of leave of the petitioner has been reflected. No
affidavit has been filed by the Department of Higher Education.
10. The petitioner also filed an affidavit in reply contesting the claims of
the College Authorities.
11. The Director of Higher Education filed an affidavit also denying the
claims of the petitioner. In the said affidavit, the department averred that
hearing was initiated by the Director of Higher Education on 29.08.2016
which was initiated by the Enquiry Officer, who was the Inspector of
College of this Directorate with the Principal of the concerned college
namely LCB College, SA of the College, the petitioner and other non-
teaching staff representatives and teaching staff representative of the
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college. It is only upon such an enquiry being conducted that a show cause
notice has been issued to the petitioner and to which the petitioner have
submitted his reply but without enclosing the required evidences in support
of his contentions made. Under such circumstances, the Department
considered the entire matter and passed the order dated 03.10.2017 which
is impugned in the present writ petition.
12. The learned counsel for the petitioner has strongly urged that the
termination of the petitioner by the impugned order is violative of the
principles of natural justice and opposed to the settled cannons of service
jurisprudence. The learned counsel for the petitioner submits that there is
no denial that the petitioner was suffering from severe health ailments and
it was therefore necessary for him to undergo extensive medical care and
hospitalization. The learned counsel for the petitioner submits that the
petitioner had submitted his application for leave and upon improvement of
his health, the petitioner even joined in his regular services. However, with
effect from January 2011, the petitioner was undergoing severe health
problems which required extensive medical care and treatment. He was
under medical treatment w.e.f. 06.01.2010 to 13.04.2011. It is only after
he recovered completely from all the ailments that he went to join the
college authority. The learned counsel for the petitioner submits that no
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show notice was served on him by the college authorities and the news
paper publication, if any, who was not noticed by him. Consequently, the
termination by the impugned order is bad in law and the same should
therefore be interfered with, set aside and quashed. The learned counsel
for the petitioner further submits that the petitioner was confirmed in his
service in the post to which he was appointed. He was not temporary
employee or employee on contractual basis. Under such circumstance, the
petitioner could not have been terminated without following the prescribed
procedure laid down by law which required a proper enquiry being
conducted against the petitioner. The learned counsel for the petitioner in
support of his contention relies upon the following Judgments :
1. Rabindra Nath Kalita Vs. State of Assam and Ors , reported in
2016 (2) GLT 955
2. Ambika Patra Vs State of Assam, reported in 2018(3) GLT
440.
3.Gullapalli Nageswara Rao and Ors. Vs Andhra Pradesh State
Road Transport Corporation and Anr., reported in AIR 1959 SC
308
13. The learned counsel relying upon the said judgments submits that
the law laid down by this Court is that Rule 9 of Assam (Discipline and
Appeal) Rules 1964 (hereinafter "the Rules of 1964") is mandatory in
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nature and any punishment that is required to be inflicted on any person
must be as per the procedure prescribed which is Rule 9 of the Assam
(Disciplinary and Appeal) Rules 1964. Under such circumstances, where the
Department of the college did not follow the prescribed procedure as laid
down, the impugned order is bad in law and the same should therefore be
set aside and quashed and the petitioner be directed to be reinstated and
all his arrear pay benefits be directed to be granted.
13. Per contra , the learned counsel for the respondents submits that at
the outset the writ petition is not maintainable inasmuch as there is a
prescribed provision for filling an appeal under the Rules of 1964 and which
having not been followed, the writ petition ought to be dismissed on the
ground of alternative remedy.
14. The learned counsel for the Department submits that where the
alternative remedy is prescribed ordinarily the writ Court will relegate the
parties to approach the statutory authority prescribed and declined to
entertain the writ petition. It is submitted that under the provisions of
Assam (Discipline and Service) Rules 1964, the provisions of an appeal
before the appellate authority is specifically provided for and in view of
such a provision, the writ petition ought not to be entertained and the
petitioner be directed to avail the alternative remedy as prescribed. The
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learned counsel for the Department relies upon the Judgment of the Apex
Court rendered in The State of Maharashtra and Ors Vs Greatship
(India) Limited, reported in 2022 LiveLaw (SC) 784.
15. Relying upon the said Judgment, the learned counsel for the
department submits that the Apex Court has categorically laid down the
law that where statutory remedies available, the petitioner ought to be
relegated the statutory authority prescribed.
16. The learned counsel appearing for the college authorities submits
that the college had been repeatedly issuing notices to the petitioner to
resume his regular services. In spite of such notices being issued, the
petitioner has remained absent from his regular services. The college
authorities have been extending all help to the petitioner on humanitarian
ground. Although the petitioner is not entitled to be granted the benefit as
offered by the college authorities. Consequently, there is no infirmity with
the procedure adopted by the college authority whereby they had resolved
in their Special Body meeting for termination of the petitioner and a copy
thereof the said resolution being forwarded to the Director of Higher
Education, Govt of Assam.
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17. The learned counsels for the parties have been heard. Pleadings on
record have been carefully perused. The case laws which are cited also
been carefully noted.
18. The petitioner after his initial appointment was regularized in the LCB
College. As a regular employee of the college, the petitioner is entitled to
his rights and privileges guaranteed under the relevant laws. The
impugned order of termination which is assailed in the present writ
petition, was admittedly issued by the Director of Higher Education
pursuant to the show cause notice issued. The show-cause notice was
issued under Rule 9 of the Rules of 1964. What is noticed is that in the
show-cause notice issued by the department, the petitioner was asked to
show cause as to why any of the penalties prescribe under Clause I to III
under Rule 7 of the aforesaid Rules of 1964 should not be inflicted on the
petitioner. The Show-cause notice issued to the petitioner is extracted
below:
"GOVERNMENT OF ASSAM
OFFICE OF THE DIRECTOR OF HIGHER EDUCATION, ASSAM
KAHILIPARA, GUWAHATI-19
*****************
No. G(B) Misc/126/2015/134 Dated, Kahilipara, the 06.06.2017
Subject: Show Cause Notice
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In exercise of the powers conferred by Government Notification
No.ABP.58/62/228, dated 5™ December 1967, the undersigned hereby
ask you to show cause under Rule, 9 of the Assam Services (Discipline
and Appeal) Rules, 1964, why any of the penalties prescribed in clauses
(i) to (iii) of Rule 7 of the aforesaid Rules should not be inflicted on you on
the following charges based on the statement of allegations attached
herewith-
*(1) While you were holding the post of Library Bearer of L.C.B.
College you have remained absent in your normal duties from time to time
with effect from 01-10-2003 and that too, without any Information. In
spite of several show cause notices (by post and through local news
papers) you have conspicuous by absence. The college authority on
humanitarian ground granted all possible leave to you. In spite of that you
become intolerably irregular in discharging your duties and since 28-08-
2008 you have been absent from your duty. Therefore, your absence in
the college is unauthorized. You are charged with dereliction of duty and
unauthorized absence.
*(2) That, as per office records of Principal, L.C.B. College you
have unauthorized absence with effect from 28-08-2008 till date but you
have given full salary on humanitarian ground granting all possible leave
to you up to November, 2009. In spite of that you become intolerably
irregular in discharging your duties and since 28-08-2008 you have
remained absent from your duty. You have subsequently on 25-02-2015
and 09-07-2015 submitted two different applications to the college
authority seeking permission to join in your post. The college authority
after examining the pros and cons of the application refused your prayer
of joining.
The Governing Body of L.C.B. College has adopted resolution vide
No.13, dated 23-02-2016 unanimously resolved to terminate you from
service for your extreme irregularities and insubordination to authority.
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You should submit your written statement in defence within 10(ten)
days from the date of issue of this communication provided you do not
Intend to Inspect the documents which have relevance with the issues
under enquiry. In case you intend to inspect those documents you should
write to the undersigned for the same within 7(seven) days from the date
of receipt of this communication and submit your explanation thereafter
within 10(ten) days from the date of completion of the inspection.
Enclosures:
1) Statement of allegation.
(Signature of the Disciplinary Authority)
Director of Higher Education, Assam,
Kahilipara, Guwahati-19"
18.1. The said show-cause notice was also contained the statement
of allegations as well as the list of documents. The list of documents
included the Governing Body's resolution also.
19. It is clear for a perusal of the show-cause notice that the College
Authorities issued the show cause under Rule 9 of the Assam Services
(Discipline and Appeal) Rules, 1964 as to why any of the penalties in
Clauses (i) to (iii) of Rule 7 of the said Rule should not be inflicted on the
charges so mentioned in the show-cause notice. What is also noticed from
the show cause dated 06.06.2017 is that the Governing Body of the LCB
College have already adopted a resolution vide Resolution No. 13 dated
23.02.2016 and had unanimously resolved to terminate the petitioner from
the services for extreme irregularity and insubordination to the authority.
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The petitioner was asked to submit his written statements of defence
within ten (10) days from the date of issue of this communication and in
the event he seeks to inspect the documents, he should write to the
authorities within seven (7) days from the date of the receipt of the show
cause notice and thereafter submit his written explanation within ten (10)
days from the date completion of the inspection.
The petitioner submitted his show cause denying the allegations
stating that he was absent from duties from time to time because of his ill-
health for illness.
20. The Assam (Discipline and Appeal) Rules are rules framed by the
Governor of Assam on the proviso to Article 309 of the Constitution of
Assam which lays down detailed procedure in respect of Disciplinary
Proceedings required to be drawn against Government Servants, the
punishments prescribe as well as the statutory remedy available. Rule 7 of
the said Rules is extracted below:
"7. Nature of penalties- The following penalties may for good and
sufficient reasons and as hereinafter provided, be imposed, on a Government
servant, namely:-
(i) censure;
(ii) withholding of increments of promotion;
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(iii) recovery from pay of the whole or part of any pecuniary loss caused by
negligence or breach of orders to the Government of Assam or the Central
Government or any other State Government, or any local or other authority
to whom services of a Government servant had been lent;
(iv) reduction to a lower service, grade or post, or to a lower time-scale, or
to a lower stage in a time-scale;
(v) compulsory retirement;
(vi) removal from service which shall not be a disqualification for future
employment
(vii) dismissal from service which shall ordinarily be a disqualification for
future employment;
.............."
21. Rule 9 of the said Rules is also extracted below:
"9. Procedure for imposing penalties- (1) Without prejudice to the
provisions of the Public Servant (Inquiry) Act, 1850, no order imposing on a
Government servant any of the penalties specified in rule 7 shall be passed
except after an inquiry, held as far as may be in the manner hereinafter
provided.
(2) The Disciplinary Authority shall frame definite charges on the basis of
the allegations on which the inquiry is proposed to be held. Such charges,
together with a statement of the allegations on which they are based, shall
be communicated in writing to the Government servant, and he shall be
required to submit, within such time as may be specified by the Disciplinary
Authority, a written statement of his defence and also to state whether he
desires to be heard in pension.
......."
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22. The procedure for imposing the penalties is prescribed under Rule 9
of the said Rules. Under the said Rule 9 sub-clause 10, major penalties are
defined as any of the penalties as specified in Clauses (iv) to (vii) of Rule 7.
Clause 9(xii) defines minor penalties as any of the penalties specified in
Clauses (i) to (iii) of Rule 7.
23. Clause 9A provides that any orders passed by the Disciplinary
Authority shall be communicated to the Government Servant and who shall
be supplied of the report of the enquiry if any, held by the Disciplinary
Authority and a copy of its findings on each charge. Rule 15 and 15A
provides for appeals against orders imposing penalty.
24. Rule 17 provides for period of limitation for appeal which shall be
three months from the date in which the appellant receives a copy of the
order appealed against.
25. From a perusal of the above, it is seen that in the show cause notice
which was issued on the petitioner, he was asked to show cause as to why
penalty under Clauses (i) to (iii) of Rule 7 should not be imposed. It is in
response to this show cause notice that the petitioner had submitted his
reply and which was ultimately considered by the authority by passing
impugn order removing the petitioner from service. What is also noticed
from the show-cause notice itself as well as from the affidavit filed by the
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respondent-College that a resolution has already been adopted vide
Resolution No. 13 in the General Body meeting of the College held on
23.02.2016. The General Body meeting by the said resolution had resolved
to release the petitioner from the said post and authorized the Principal to
send the copy of resolution to the Director of Higher Education for taking
necessary action. What is evident from a perusal of the show cause and
the pleadings available on record is that the show cause was issued to the
petitioner asking him to show cause why the minor penalties i.e. Clauses (i)
to (iii) of Rule 7 should not be imposed. The show cause also reflects the
mind of the Disciplinary Authority as well as the employer namely the LCB
College that a resolution has already been adopted to release him from
service.
26. The case projected by the department as well as by the college
authorities, nowhere prescribes that pursuant to the show cause notice
dated 06.06.2017 issued by the Director Higher Education, Government of
Assam, asking the petitioner to show cause as to why penalties under
Clauses I to III of Rule 7 of the rules of 1964 should not be imposed; have
been subsequently modified or amended to include the penalties from IV to
VII of the Rule 7 of the Rules of 1964. In other words the show-cause
notice dated 06.06.2017 was issued by the Director of Higher Education,
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Govt. of Assam for imposition of punishments which are considered to be
minor penalty under the Rules of 1964 itself. In response to the said show
cause notice, the petitioner responded by way of his written statement
denying the charges levelled against him. The Director of Higher Education
thereafter by the impugned order dated 03.10.2017 referring to the
resolution adopted by the College Authorities terminated the services of the
petitioner. Nowhere in the impugned order has it been specified as to why
the department decided to impose major penalties when the show cause
notice itself reflects the intention of the department to impose minor
penalties under Rule 7 of the Rules of 1964. The resolution adopted by the
college authorities and which is a part of the pleadings before this Court
also does not reflect as to the procedure adopted by the college authorities
in arriving at this decision as seen from the resolution.
27. In Gullapalli Nageswara Rao (Supra), the Apex Court held that the
authority conducting the hearing must decide. Any decision taken by any
authority which did not conduct the hearing will be arbitrary and hit by
Article 14.
28. In Ambika Patra (Supra), a Co-ordinate Bench of this Court held that
for imposition on major penalty, the procedure prescribed under Rule 9
must be followed and order of dismissal has been passed in the facts of the
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case, cannot be passed merely on the issuance of charges and the replies
submitted thereto by the petitioner. Under such circumstances, the Co-
ordinate Bench held that the impugned order therein to be bad in law and
interfered with the same.
29. In Rabindra Nath Kalita (Supra), another Co-ordinate Bench of this
Court also held that the procedure prescribed in Rule 9 will have to be
followed mandatorily. It held that before imposition of the punishment
holding of an enquiry as mandated under Rule 9 is mandatory. Non-
compliance of the procedure prescribed under Rule 9 would vitiate
departmental proceedings drawn up against the Government Servants.
30. In Greatship (India) Limited (Supra ), which was relied upon by the
learned counsel for the respondent authorities, the Apex Court held that
where alternative remedy is available writ Court ought not to invoke its
jurisdiction under Article 226 of the Constitution of India.
31. In State of Karnataka Vs. Umesh, reported in 2022 (6) SCC 563, the
Apex Court while considering the challenge made to the Disciplinary
Proceedings summarized the principles under which exercise of judicial
review is warranted for interfering in disciplinary proceedings. The Apex
Court held that Court in exercise of judicial review must restrict its review
to determine whether-
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(1) Rules of natural justice have been complied with;
(2) finding of misconduct is based on some evidence;
(3) statutory rules governing conduct of disciplinary enquiry were
followed;
(4) findings of Disciplinary Authority suffered from perversity;
(5) Penalty disproportionate to the proved misconduct.
32. In Regional Manager, UCO Bank Vs. Krishna Kumar Bharadwaj,
reported in (2022) 5 SCC 695, the Apex Court held that the power of
judicial review in cases of Disciplinary Proceedings/dismissal is
circumscribed by the limits of correcting errors of law or procedural errors
leading to manifest injustice or violation of natural justice and is not akin to
adjudication of the case on merits. Although on the facts of that case, Apex
Court held that interference with dismissal order was wholly unjustified.
33 In Deputy General Manager (Appellate Authority) and ors Vs. Ajai
Kumar Srivastava, reported in 2021 (2) SCC 612, the Apex Court while
reiterating the principles on the which interference in Disciplinary
Proceedings is warranted held that examination by Court is limited to
determining whether-
(i) enquiry was held by competent authority;
(ii) whether rules of natural justice are complied with;
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(iii) whether the findings or conclusions are based on some evidence
and authority has power and jurisdiction to reach finding of fact or
conclusion.
34. Having examined the law laid down by this Court as well as by the
Apex Court, it is seen that ordinarily the power of judicial review of in
respect of Disciplinary Proceedings is limited to examine whether any
violation of natural justice has taken place, the procedure prescribed by the
Rules have been followed and whether the conclusions arrived at has been
supported by atleast some evidence
35. In the facts of the present case, from a bare perusal of the show
cause notice, it is evident that while the authority initiated the proceedings
asking the petitioner to show cause as to why punishments prescribed
under Clause (i) to (iii) of Rule 7 of the Rules should not be imposed, the
final order passed by the Disciplinary Authority and which is impugned in
the present proceedings reveals that the Disciplinary Authority passed the
order imposing the punishment of removal from service which is not
included in any of the punishment prescribed under Rule 7(i) to to Rule
7(iii). In other words, the punishment imposed is from Rule 7(iv) to Rule
7(vii). The show cause notice was issued to the petitioner to show cause in
respect of a punishment proposed to be imposed on the petitioner which is
contemplated as minor punishment under Rule 9(xi) of the said Rules
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whereas the impugned order dated 03.10.2017 which was passed by the
Disciplinary Authority is imposed the punishment of dismissal from service
which is a major penalty as prescribed under Rule 9(x) of the said Rules.
As such on the fact of it, it appears that the order imposing punishment
was imposed without following the procedure prescribed under the
Discipline and Appeal Rule, 1964. There is no order or communication
pointed out to the Court by the respondents or is available in the pleadings
which show that the initial show cause notice was subsequently amended
to impose major penalties and an opportunity to show cause was given to
the petitioner. That apart, no enquiry report has been placed before this
Court. It is the consistent plea of the petitioner that no enquiry report was
served on the petitioner. The law in respect of the consequences that will
entail upon non-furnishing of an enquiry report on the delinquent
personnel is well established and is elucidated in Managing Director, ECIL,
Hyderabad Vs. B. Karunakar, reported in 1994 Supp (2) SCC 391 and
several subsequent judgments where the view expressed in Managing
Director, ECIL (Supra) has been followed consistently. Under such
circumstances, it is per se evident that the Disciplinary Proceedings
conducted by the respondent authorities is totally contrary not only to the
laws of natural justice but to the procedure prescribed under the Discipline
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and Appeal Rules. Under such circumstances, the disciplinary proceedings
cannot be held to have been conducted in terms of the procedure
prescribed under the Rules of 1964 and therefore is held to be bad in law
and not sustainable. The order of dismissal from service is therefore
consequently held to be also bad in law. Ordinarily if the enquiry report is
not served on the delinquent personnel, the matter could have been
remanded back to the department to continue afresh after serving copy of
the enquiry report. However, in the peculiar facts of this case, where the
entire procedure prescribed under the Discipline and Appeal Rules have
been flouted, it has to be held that no enquiry as contemplated under the
Discipline and Appeal Rules was conducted and therefore, it will not serve
any purpose to remand the matter back for continuing with the enquiry
after service of the enquiry report to the petitioner.
36. Having carefully perused the provisions of the Rules of 1964 as well
as the pleadings on record, it is seen that for a major penalty to be inflicted
like termination from service, the provisions prescribed under Rule 9 must
be mandatorily followed. In the facts of the present proceedings, the
petitioner was put to notice by the show cause notice issued by the
department as to why penalties under Clauses I to III of Rules 7 ought not
to be inflicted and which are construed to be minor penalties under Rule 11
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of the 1964. However, subsequently, by the impugned order dated
03.10.2017, the petitioner was terminated and which is shown as a major
penalty under clauses IV to VII of Rule 7 of the Rules of 1964. For
imposition of such major penalties, the procedure prescribed under the
Rules of 1964 is well defined. The affidavit filed by the Director of Higher
Education had referred to some enquiry being conducted by the
Department with an Enquiry Officer. However, no such enquiry report etc
has been furnished before the Court even along with the pleadings filed.
37. Under such circumstances, this Court is of the considered view that
the manner in which the termination of the petitioner was effected is
completely opposed and contrary to the provisions prescribed under the
Rules of 1964. Besides the fact that the show cause notice was issued
requiring the petitioner to show cause as to why the penalties under
Clauses I to III of Rule 7 which are minor penalties in nature ought not to
be imposed, the authority upon consideration of the show cause reply
instead imposed the major penalties prescribed under Clause IV to Clause
VII of Rule 7 of the Rules of 1964.
38. In so far as the objections raised by the respondents that there is a
statutory remedy prescribed under the statute and that the petitioner
ought to have been relegated to prefer an appeal before the appellate
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authority, the same cannot be accepted inasmuch as the entire
proceedings which was conducted against the petitioner being contrary to
the basic principles of natural justice as well as to the procedure prescribed
under the Discipline and Appeal Rules, no fruitful purpose will be served by
relegating the petitioner to prefer an appeal before the statutory appellate
authority prescribed under the Discipline and Appeal Rules, 1964. Where
the Court has concluded that the entire proceedings have been conducted
in violation of natural justice as well as to the procedure prescribed under
Rules of 1964, the bar of alternative remedy will not preclude the writ
Court from interfering with such proceedings. Reference in this regard may
be made to the Commissioner of Income Tax Vs. Chhabil Dass Agarwal ,
reported in 2014(1) SCC 603.
39. The impugned order dated 03.10.2017 will have to be held to be bad
in law and the same calls for interference by this Court. Although it is seen
from the pleadings that the department conducted some enquiry, no
enquiry report was served upon the petitioner or produce before the Court
even pleadings being filed on behalf of the department or by the college.
The college authority have maintained their stand that they have offered all
help including release of his regular salary only on humanitarian ground.
Such averment in the pleadings revealed that the college authorities do not
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dispute the submissions of the learned counsel for the petitioner that he
was suffering from severe ailments and which required long term medical
care and hospitalization. If that be so then the petitioner ought to have
been suitably put to notice and proper enquiry ought to have been initiated
before the resolution was adopted by the college authorities leading to
termination of the petitioner. At the cost of repetition, it is stated that the
petitioner was not a temporary employment or in contractual employment.
The petitioner was regularized in service and therefore, where the
department and the college authorities have proceed against him in terms
of the provisions of the Rules of 1964, there is no scope for conducting the
procedure prescribed under the Rules of 1964 in a perfunctory manner.
The procedure prescribed must be rigorously followed by the department
as it entails civil consequences.
40. In view of such discussions, as held above, the impugned order
dated 03.10.2017 is interfered with and set aside. The department may
proceed with the enquiry on the basis of the show-cause notice is they are
unsatisfied with the replies given by the petitioner though his show cause
reply. In such an event, the department will have to initiate departmental
proceedings as per the procedure prescribed under the Rules of 1964 and
pass such order as deemed fit and proper. In view of the interference of
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the impugned termination order dated 03.10.2017 the petitioner will be
entitled to be reinstated in his post as bearer (Mali) under the LCB College,
Maligaon
41. In so far as the arrear pay and back-wages are concerned , the
petitioner is entitled to back wages and arrear pay till the date of his
termination.
42. The enquiry if proceeded against the petitioner by the department
shall be completed within a period of 3 months from the date of receipt of
the certified copy of this order
43. The writ petition stands allowed in terms of the above, no order as to
costs.
JUDGE
Comparing Assistant
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