Gauhati High Court
Debazeet Deb Ray vs The State Of Assam And 4 Ors on 27 March, 2025
Author: Suman Shyam
Bench: Suman Shyam
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GAHC010237672022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7710/2022
DEBAZEET DEB RAY
S/O- DEBENDRA NATH DEB RAY, R/O- SONAI ROAD, MICHEL SARANI,
SILCHAR- 788006, DIST.- CACHAR, ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, PUBLIC
WORKS ROADS DEPTT., (PWRD), DISPUR, GHY-06
2:THE CHIEF ENGINEER
P.W.D (ROADS)
ASSAM
CHANDMARI
GHY- 03
3:THE ADDL. CHIEF ENGINEER
PWRD
BARAK VALLEY ZONE
SILCHAR
DIST.- CACHAR
ASSAM
4:THE SUPERINTENDING ENGINEER
P.W.D. CACHAR ROAD CIRCLE
SILCHAR
DIST.- CACHAR
ASSAM
5:THE EXECUTIVE ENGINEER
P.W.R.D.
BORKHOLA AND KATIGORAH TERRITORIAL ROAD DIVISION
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KATIGORAH
DIST.- CACHAR
ASSAM
Advocate for the Petitioner : MR B D DAS, MR H K SARMA,B B HUSSAIN
Advocate for the Respondent : SC, PWD,
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
Date of hearing : 27.03.2025.
Date of judgment : 27.03.2025.
JUDGMENT & ORDER (Oral)
Heard Mr. B. D. Das, learned senior counsel assisted by Mr. H. R. Das, learned
counsel appearing for the writ petitioner. Also heard Mr. R. Dhar, learned Standing
Counsel, Public Works Department, Assam appearing for the official respondents.
2. Being inter-alia aggrieved by the order of penalty dated 26.07.2021 issued by
the Additional Chief Engineer, PWRD, Barak Valley, Silchar imposing major penalty
upon the petitioner and also the subsequent order dated 09.03.2022 passed by the
Appellate Authority partially allowing the appeal of the petitioner while maintaining
the order of censure and adjustment of the period of suspension against the leave
available to the credit of the petitioner, the instant writ petition has been filed.
3. The facts of the case, in a nutshell, are that the writ petitioner herein, while
serving as Head Assistant in the office of the Executive Engineer, PWRD, Borkhola &
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Katigorah Territorial Road Division i.e. the respondent No.5, was subjected to
proceeding for alleged misconduct. Initially, the petitioner was served with a show
cause notice dated 20.05.2020 informing him of the alleged misconduct, calling for
his written response within a specified timeframe. Accordingly, the petitioner had
submitted his show cause reply. Thereafter, on 14.09.2020, a 2 nd show cause notice
was issued to the petitioner indicating the charge brought against him along with a
statement of allegations thereby projecting the penalties that are proposed to be
imposed upon the petitioner. It appears that the writ petitioner did not submit any
statement of defence/written statement against the 2 nd show cause notice dated
14.09.2020. Consequently, the impugned order dated 26.07.2021 was issued to him by
imposing the following penalties :-
"1. Censure.
2. Reduction of his post from Head Asstt. to Senior Asstt. permanently with
effect from 19/05/2020 at Grade Pay Rs.8000.00 per month under the Pay band
of Rs.14000.00 to Rs.60500.00 with transfer to the office of the Executive
Engineer, PWRD, Patharkandi & Ratabari Territorial Road Division, Ramkrishna
Nagar."
4. In the order dated 26.07.2021 it was further mentioned that the period of his
suspension with effect from 19.05.2020 to the date of the order i.e. 26.07.2021, shall be
treated as leave under the Revised Leave Rules of 1934 and the said period would be
adjusted against the available leave in the credit of the petitioner.
5. Aggrieved by the order dated 26.07.2021, the petitioner had preferred an
appeal under Section 15 of the Assam Services (Discipline & Appeal) Rules, 1964
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(herein after referred to as the Rules of 1964) before the appellate authority. The
appeal preferred by the petitioner was disposed of by order dated 09.03.2022. The
operative part of the order dated 09.03.2022 is quorted herein below :-
"However, (i) Considering Sri Debajeet Dev Roy's submission that his
indisciplinary rude behaviour were unintentional, that he has only 4 years left to
retirement, that he will not repeat the undesired behavior and action, that he
will work with the desired commitment and (ii) Relying on good faith, it is
decided to limit the action on him to the following :
i) Censure
ii) Treating his period of suspension from 19.05.2020 to 26.07.2021
as leave as per Revised Leave Rules, 1934 adjustable from the
available leave at his credit as per the Revised Leave Rules, 1934.
The earlier office order No.06.2021-22 dtd. 26.07.2021 issued by
Addl. Chief Engineer, PWRD, Barak Valley Zone is hereby abated with
immediate effect.
With the above, the Appeal dtd. 12.08.2021 filed by Sri Debazeet
Deb Roy, Senior Asstt. is disposed off."
6. It is, thus, apparent from the order dated 09.03.2022 passed by the Appellate
Authority that although the major penalty of reduction in rank imposed upon the
petitioner was interfered with by the said Authority, yet, the penalty of censure was
maintained. That apart, the order directing adjustment of the leave available to his
credit against the period of suspension from 19.05.2020 to 26.07.2021 was also
affirmed by the appellate authority. Aggrieved thereby, the petitioner has
approached this Court by filing the instant writ petition.
7. Mr. B. D. Das, learned senior counsel appearing for the writ petitioner has
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assailed the impugned order(s) primarily on two counts. Firstly, that the authorities
could not have imposed even the minor penalty of censure upon the petitioner
without holding a full-fledged enquiry proceeding based on charges framed against
him. Secondly, the direction to adjust the leave available to the credit of the
petitioner against the period of his suspension was not issued by following the
mandate of Rule 54-B of the F.R. thus causing serious prejudice to the interest of the
writ petitioner.
8. In order to drive home the points urged by Mr. Das, he has relied upon two
decisions of this Court viz., the decision in the case of Jamal Uddin Laskar vs. State of
Assam and others reported in 2017 SCC OnLine Gau 451 and another decision of the
Division Bench rendered in Samaresh Ch. Bhattacharjee Vs. State of Assam and
another reported in 1992 SCC OnLine Gau 142 to submit that no penalty, including
the minor penalty of censure, can be imposed upon a Government servant without
holding a proper enquiry proceeding. As such, the impugned order is unsustainable in
law.
9. Responding to the above submissions, Mr. R. Dhar, learned Standing Counsel,
PWD has argued that although the initial order of penalty dated 26.07.2021 was not
based on any enquiry proceeding, yet, in view of the order passed by the appellate
authority interfering with the major penalty of reduction in rank, the said issue no
longer survives for consideration by this Court as the penalty of censure, being a
minor penalty, can be imposed as per provisions of Rule 9.(12)(a) of the Rules of 1964
by dispensing with an enquiry proceeding based on definite charge framed against
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the Government servant.
10. In so far as the second grievance of the petitioner pertaining to adjustment of
his leave against the period of suspension is concerned, Mr. Dhar submits that if the
petitioner submits a representation to that effect, the competent authority will
consider the same and pass appropriate order in consonance with the mandate of
F.R. 54-B(1) and (3) within a specified time frame.
11. I have considered the submissions made at the Bar and have also gone
through the materials brought on record.
12. From the order passed by the Appellate Authority, it is apparent that as on
date, save and except the minor penalty of censure, no other penalty is operating
against the petitioner. The question that would, therefore, arise in this case is as to
whether there was any necessity under the law to conduct a full fledged enquiry by
framing charges against the petitioner before imposing the minor penalty of
censure? The answer to the said query, in the opinion of this Court, lies in Rule 9.(12)
(a) and (b) of the Rules of 1964.
13. In the above context, it would be pertinent to mention herein that penalties
that can be imposed upon an employee of the Government of Assam have been
laid down in Rule 7 of the Rules of 1964. According to Rule 7(i), censure is a minor
penalty.
14. Rule 9.(11) permits the Disciplinary Authority to pass an order imposing minor
penalty including the penalties prescribed under Clauses (i) and (iii) of Rule 7.
However, Rule 9(12) deals with procedure to impose minor penalty of censure. Rule 9.
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(12)(a) and 12(b) of the Rules of 1964 reads as follows :-
"(12) (a) Notwithstanding anything contained in this rule, it shall not be
necessary to follow the procedure laid down in the proceeding sub-rules in
cases where it appears to the authority competent to impose the penalty at
the initial stage of the proceedings that the penalty of censure would be
adequate, but if at any later stage it is proposed to impose any other penalty
specified in Rule. 7, the procedure laid down in the said rules shall be followed.
(b) No order imposing the penalty of censure shall however be passed,
except after -
(i) the Government servant is informed in writing of the proposal to
take action against him and of the allegations on which it is
proposed to be taken and given an opportunity to make any
representation he may wish to make; and
(ii) such representation, if any is taken into consideration by the
Disciplinary Authority."
15. From a plain reading of Rules 9.(12)(a) and (b) of the Rules of 1964 it is thus
clear that the Disciplinary Authority can dispense with a regular enquiry into the
allegations brought against the delinquent at the initial stage of the proceeding if the
penalty of censure is deemed to be adequate.
16. In the present case, it is the admitted position of fact that not once, the
petitioner was actually served with two show cause notices clearly laying down the
allegations brought against him as well as the penalty proposed to be imposed upon
him by the Disciplinary Authority. He had submitted his show cause reply to the show
cause notice. That was the initial stage of the proceeding and at that stage, it was
open for the authorities either to go for a regular enquiry after framing charge by
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appointing an Enquiry Officer or to close the proceedings by imposing the penalty of
censure by taking recourse under Rule 9.(12)(a) and ((b). It is no doubt correct that
Rule 9.(12)(a) and ((b) could not have been imposed by the Disciplinary Authority to
impose the penalty of reduction in rank upon the petitioner without holding a regular
enquiry proceeding. However, as noted above, the said penalty has been interfered
with by the Appellate Authority. If that be so, the only penalty that survives at this
stage is the minor penalty of censure which could have been imposed by the
authorities without holding any departmental proceeding. There is nothing in the
Rules of 1964 which prevents the Disciplinary Authority from imposing the minor
penalty of censure without holding a regular enquiry, provided it is done at the initial
stage.
17. In view of the above, I do not find any justifiable ground for this Court to
interfere with the order of the Appellate Authority in so far as the same affirms the
order of minor penalty of censure is concerned.
18. The decisions relied upon by Mr. Das in the case of Samaresh Ch.
Bhattacharjee(supra) and Jamal Uddin Laskar (supra) are not authorities for the
proposition that the respondents would be duty bound to hold a full-fledged enquiry
even for imposing minor penalty of censure at the initial stage. As such, the ratio laid
down in those decisions, in the opinion of this Court, would not be of any avail to the
petitioner in the facts and circumstances of the present case.
19. Coming to the next issue pertaining to adjustment of the leave available to
the petitioner against his period of suspension, it is the admitted position of fact that
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the petitioner was placed under suspension on 19.05.2020 and subsequently, he was
reinstated on 26.07.2021. F.R. 54-B deals with procedure to be adopted in case of
reinstatement of suspended employees.
20. F.R. 54-B(1)(b) enjoins a duty upon the competent authority to consider
whether the period of suspension should be treated as spent on duty or not, upon
reinstatement of a Government servant.
21. Rule 54-B(3) of the F.R. & S.R. reads as follows :-
"(3) Where the authority competent to order reinstatement is of the opinion
that the suspension was wholly unjustifed, the Government servant shall,
subject to the provisions of sub-rule (8) be paid the full pay and allowances to
which he would have been entitled, had he not been suspended :
Provided that where such authority is of the opinion that the termination
of the proceedings instituted against the Government servant had been
delayed due to reasons directly attributable to the Government servant, it
may, after giving him an opportunity to make his representation within sixty
days from the date on which the communication in this regard is served on him
and after considering the representation, if any, submitted by him, direct, for
reasons to be recorded in writing, that the Government servant shall be paid
for the period of such delay only such amount (not being the whole) of such
pay and allowances as it may determine."
22. If the decision of the departmental authority is to adjust the leave to the credit
of the petitioner against his period of suspension, the same would undoubtedly have
an adverse bearing on the petitioner. In such circumstances, the writ petitioner would
have a right to make a representation against such a decision and also make a
request to be heard by the authorities before any final decision is taken in the matter.
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Such a requirement not only flows from the provisions of Rule 54-B (1), (3), (5) and (7)
but a similar view has also been expressed by this Court in an earlier decision
rendered in the case of Dr. Tapan Hazarika Vs. State of Assam and others [WP(C)
No.2106/2023] dated 05.11.2024.
23. For the reasons stated above, the impugned order dated 09.03.2022 passed
by the Appellate Authority, in so far as the same deals with the adjustment of leave to
the credit of the petitioner against the period of his suspension, is hereby set aside.
The writ petitioner is granted four weeks time, with effect from today, to submit a
representation before the competent authority ventilating his grievance as regards
adjustment of leave against the period of suspension furnishing proper justification. If
such a representation if submitted within the time-frame mentioned above, the same
be considered objectively and disposed of in accordance with law by a reasoned
order, within two months thereafter. If the petitioner continues to remain aggrieved in
the matter even thereafter, it would be open for him to approach this Court once
again by filing appropriate petition.
The parties to bear their own cost.
Records be returned back.
JUDGE
T U Choudhury/Sr.PS
Comparing Assistant
