Gauhati High Court
Prabin Kishore Das vs The State Of Assam And 2 Ors on 25 January, 2024
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/9
GAHC010065772021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case : WP(C)/9515/2019
PRABIN KISHORE DAS
S/O LATE CHANDRA KISHORE DAS
R/O VILL-JANIA ROAD
NEAR LIC BUILDING
BARPETA
P.O.
P.S. AND DIST-BARPETA
ASSAM
PIN-781301
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REPRESENTED BY THE PRINCIPAL SECRETARY/ADDITIONAL CHIEF
SECRETARY/SECRETARY TO THE GOVT. OF ASSAM
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
DISPUR
GUWAHATI-6
2:THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT
ASSAM
JURIPAR
PANJABARI
GUWAHATI-37
3:THE JOINT DIRECTOR
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
ASSAM
JURIPAR
PANJABARI
GUWAHATI-37
------------
Advocate for : DR. B AHMED
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Advocate for : SC
PNRD appearing for THE STATE OF ASSAM AND 2 ORS.
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
25.01.2024
Heard Mr. I. Choudhury, learned counsel for the petitioner. Also heard Mr.
N.K. Dev Nath, learned Standing Counsel for the respondents/Department.
2. This writ petition is directed by the petitioner who was employed as an
Extension Officer (Panchayat) at Mandia Development Block, Barpeta.
Subsequently, while he was working as Extension Officer (P) of Tihu Barama
Development Block, petitioner was placed under suspension with effect from
15.09.2003 by order dated 14.10.2003 passed by the Director of Panchayat and
Rural Development, Assam. Petitioner being aggrieved, approached this Court
by filing W.P(C) No. 3698/2005 and by interim order dated 06.06.2005, the
suspension order passed by the Department was suspended and kept in
abeyance and the respondents were directed to allow the petitioner to resume
his duties.
3. In terms of the interim order dated 06.06.2005, petitioner was reinstated
in his service pending drawl of departmental of proceedings and he was
thereafter transferred from Tihu Barama Development Block of Nalbari district to
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Kapili Development Block of Nagaon district. Subsequently, show cause notices
were issued to the petitioner under Rule 9 of the Assam Services (Discipline and
Appeal) Rules 1964. The petitioner responded by filing his written statements
and thereafter an Enquiry Officer was appointed. Enquiry proceedings were
initiated and the Enquiry Officer completed his enquiry and submitted the
enquiry report on 16.09.2010 before the disciplinary authority. However, copy of
the enquiry report was never served on the petitioner. On the basis of the
enquiry report submitted, the Commissioner, Panchayat and Rural Development,
having accepted the enquiry report, issued the order dated 29.12.2010, holding
him to be guilty of misconduct and imposed a penalty of removal of dismissal
from service under Rule 7(vi) of the Assam Services (Discipline and Appeal)
Rules 1964. Against the order of removal of service dated 29.12.2010, petitioner
approached this Court by filing W.P(C) No. 1016/2011. The said writ petition
was premised on the ground that enquiry report was not furnished and no
opportunity of representation was given to the petitioner.
4. A Co-ordinate Bench of this Court by order dated 21.02.2013 allowed the
writ petition, interfered with the dismissal order and directed the respondents to
furnish a copy of the enquiry report and held that the disciplinary proceedings
are not sustainable from the stage where the enquiry report was not given. The
respondents were given liberty to proceed with the departmental enquiry de
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novo by furnishing a copy of the enquiry report to the petitioner and thereafter
pass appropriate orders in law. The Writ Petition was accordingly allowed and
disposed of.
5. The respondents, however, interpreted this order dated 21.02.2013 as a
direction of the Court, setting aside the entire disciplinary proceedings. The
respondents therefore, proceeded to conduct a fresh de-novo enquiry and serve
show cause notice dated 31.10.2019 on the petitioner and the petitioner was
asked to respond to the said show cause notice. Show cause notice also
included a list of documents and list of witnesses as well as the statement of
allegations. The petitioner, therefore is before this Court in the present writ
petition challenging the show cause notice dated 31.10.2019 as being contrary
to the directions of this Court by order dated 21.02.2013 passed in W.P.(C) No.
1016/2011.
6. Although notices were issued in the matter as far back as 09.04.2021 and
opportunity of filing affidavit was granted by this Court and inspite of several
other opportunities being granted to the department, no counter-affidavit is filed
by the respondents.
7. Upon careful consideration of the pleadings available on record and also
upon due consideration of the submissions made by the learned counsel for the
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parties, it is seen that the department appears to have misinterpreted the
directions or wrongly interpreted the directions of the co-ordinate Bench of this
Court by the order dated 21.02.2013 passed in W.P(C) No.1016/2011. The order
dated 21.02.2019 is reproduced as under:
"21.02.2013
Heard Mr. T.J. Mahanta, learned counsel appearing for the petitioner and
Mr. J. Handique, learned Govt. Advocate for the respondents.
The petitioner has filed this writ petition challenging the dismissal order on
two grounds. Firstly, the order has been passed by an authority who is lower in
rank of the appointing authority and secondly, before passing of the order of
dismissal, the petitioner has not been furnished a copy of the report of the
Enquiry Officer.
It has also been admitted by the authorities in the affidavit-in-opposition
filed by the respondent No.3 in para No.14 that the respondent authority has no
objection in furnishing the Enquiry Report and the same was not furnished to
the petitioner as the petitioner had never sought for the same, which therefore
substantiates the contention of the petitioner that no enquiry report was
furnished to the petitioner before the final dismissal a was passed.
In view of the law laid down in Union of India & ors vs Mohd.
Ramzan. Khan; AIR 1991 SC 471 and ECIL vs. Karunakar, (1993) 4 SCC
727, the present petition is allowed and the disciplinary proceeding is interfered
as not sustainable from the stage where the enquiry report was not given. In
other words, the authorities will be at liberty to proceed with the departmental
enquiry de novo by furnishing a copy of the enquiry report to the petitioner and
pass appropriate order in accordance with law.
Accordingly, the impugned order dated 29.12.2010 (Annexure-A/20 to
the writ petition) is set aside.
With the above observation and direction, the present petition is
disposed of to the extent indicated above.
A copy of this order may be furnished to the learned counsel appearing
for the parties for communication to the authorities concerned."
8. A careful perusal of the order as extracted above reveals that relying on
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the principle culled out in Union of India and Ors Vs. Mohd. Ramzan Khan ,
reported in 1991 SC 471 and ECIL Vs. Karunakar, reported in (1993) 4 SCC 727
rendered by the Apex Court, the writ petition was allowed by the Co-ordinate
Bench and the disciplinary proceeding was interfered with as not sustainable
from the stage where the enquiry report was not given. The authorities were
given liberty to proceed with the departmental enquiry de novo by furnishing a
copy of the enquiry report to the petitioner and pass appropriate order in
accordance with law. However, it is seen that the department besides not
furnishing a copy of the enquiry report submitted by the Enquiry officer
appointed to complete the enquiry proceedings in respect of show cause notice
dated 04.05.2007, the department proceeded to serve a fresh show cause
notice dated 21.10.2019 and called upon the petitioner to file his written
statement.
9. A perusal of the subsequent show cause notice dated 31.10.2019 does not
reflect that the earlier enquiry proceeding was abandoned and that a fresh
enquiry proceeding denovo has been initiated. Under such circumstances it
cannot be said that the earlier enquiry proceedings where abandoned by the
department and consequent thereupon a fresh enquiry de-novo has been
instituted against the petitioner. Although no affidavit has been filed inspite of
opportunities being granted by the department, Mr. N.K. Dev Nath, learned
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Standing counsel for the department submits that this subsequent show cause
notice dated 31.10.2019 which is impugned in the present writ petition was
issued in terms of the order dated 21.02.2013 passed in W.P.(C) No. 1016/2011
as the department understands this order as a liberty granted to the department
to initiate the departmental enquiry de-novo against the petitioner. Such
interpretations sought to be given to the order dated 21.02.2013 passed in W.P.
(C) No. 1016/2011 by the department or by the learned Standing Counsel
cannot be accepted.
10. A bare perusal of the order reflects that the disciplinary proceeding was
interfered with as not sustainable from the stage where the enquiry report was
not given. This is qualified by the subsequent direction contained in the said
order that the authorities will be at liberty to proceed with the departmental
enquiry de-novo by furnishing a copy of the enquiry report to the petitioner and
pass appropriate orders in accordance with law.
11. If the interpretation sought to be given by the department over the
learned Standing Counsel is to be accepted then the direction of the Court for
furnishing a copy of the enquiry report will carry no meaning if it is to be
interpreted that the Court had directed for a fresh de-novo enquiry. It is clear
from a bare perusal of the order dated 21.02.2013 passed in W.P.(C) No.
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1016/2011 that the Co-ordinate bench while interfering with the earlier enquiry
proceedings had granted liberty to the respondents to proceed with the enquiry
from the stage where the enquiry report was not served on the petitioner and
thereafter pass appropriate orders in accordance with law only after furnishing
the enquiry report submitted by the Enquiry officer and as has been held by the
Apex Court in the Judgment of ECIL (Supra) and other subsequent Judgments.
12. Under such circumstances, this Court has no option but to allow the writ
petition by interfering with the show cause notice dated 31.10.2019 to the
contrary to the directions contained in the order dated 21.02.2013 passed in
W.P.(C) No. 1016/2011. It is trite to mention here that there is no dispute that
this order today has attained finality as no appeal or review has been preferred
against this order. It is also stated at the Bar that although initially the copy of
the enquiry report was not furnished subsequently during the pendency of the
proceedings, enquiry report has been furnished. Accordingly, this writ petition is
allowed. The impugned show cause notice dated 31.10.2019 is interfered with
and set aside and the directions of this Court passed on 21.02.2013 passed in
W.P.(C) No. 1016/2011 are reiterated. The department will be at liberty to
proceed with the enquiry from the stage where the enquiry report was not
furnished at the earlier point in time.
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13. The writ petition accordingly stands allowed to the extent indicated above
and disposed of. No order as to cost.
JUDGE
Comparing Assistant
