Judgment:
B.K. SHARMA, J.
1. Heard Mr. H.K. Deka, learned Sr. Counsel for the petitioner. Also heard Mr. A.K. Goswami, learned Sr. Counsel and S.C., K.A.A.C., assisted by Mr. Banik, learned S.C., K.A.A.C.
2. The petitioner, a Lower Primary School teacher being aggrieved by the termination of his service on ground of gross negligence of duty, has invoked the writ jurisdiction of this Court.
3. The petitioner was first appointed as L.P. School teacher on 27.1.1986. His appointment order was issued by the Secretary, Primary Education Board, Karbi Anglong Autonomous District Council, Diphu. Eventually he became the head Pandit of the L.P. School in which he had been serving.
4. The petitioner was placed under suspension by order dated 1.7.1997 and the same was issued pending drawl of the departmental proceeding. He was issued with charge-sheet on 16.10.1997 containing the following charges:
(1) That while you were regularly irregular since August, 1996 in your school duty. You are therefore charged with.
(2) That your irregularity made the irregular lesion of the learning students and hampered their academic progress of education.
(3) That you were not informed to any concerning authority regarding your leave of absent, its shown your negligence and disobedience of the authority. You are therefore charged with.
5. The petitioner was directed to submit his written statement in defence within 15 days from the date of receipt of the charge-sheet which he accordingly submitted on 31.10.1997. He categorically denied all the charges. Alongwith the written statement of defence, he also submitted 14 documents in support of his defence.
6. Although the petitioner was placed under suspension by the aforesaid order dated 1.7.1997, he was not provided with the subsistence allowance till the order dated 11.8,1999 was issued by the Primary Education Officer, Karbi Anglong Autonomous Council. By the said order the petitioner was provided with 30% subsistence allowance w.e.f. the date of suspension. Prior to that the petitioner made a representation on 9.4.1999 urging for payment of subsistence allowance indicating as to how in absence of subsistence allowance he along with his family members was suffering. Thus it is seen that it was more than two years after placing the petitioner under suspension he was provided with subsistence allowance. Apart from the delay in providing subsistence allowance to the petitioner by more than two years, he was also not paid the full amount of subsistence allowance, but was paid only 30% of the same.
7. FR 53 provides for payment of subsistence allowance to a Government Servant placed under suspension. Initially the Government servant under suspension is to be provided with 50% of the salary and thereafter same is required to be enhanced to 75%. However, in the instant case, the petitioner was not provided with subsistence allowance for long more than two years and thereafter was provided with only 30%. The Apex Court in the case of Capt. M. Paud Anthony v. Bharat Gold Mines : 1999(82) FLR 627(SC), took strong exception of the fact that the delinquent officer involved in the said case was not paid subsistence allowance during the pendency of the departmental proceeding. As in the said case, it is also not the case of the respondents in the instant case that the petitioner had any other source of income. Apart from other grounds involved in the said case towards interfering with the order of dismissal from service, the Apex Court also took notice of the fact that the delinquent officer was not provided with the subsistence allowance and the said fact was one of the grounds towards interference with the order dismissal from service.
8. The petitioner in his written statement of defence submitted on 31.10.1997 categorically denied all the charges. As noticed above, his written statement of defence was accompanied by as many as 14 documents. It is the specific case of the petitioner that the respondents did not comply with the requirements of Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964. It is also the specific case of the petitioner that he was not furnished with the copy of the enquiry report before imposing the extreme penalty of discharge from service. Further ground urged in the writ petition is that the order of discharge having been passed by the authority lower than the appointing authority, same is not sustainable in law being violative of Article 311 of the Constitution of India. Procedural irregularity in conducting the departmental proceeding has also been indicated by the petitioner.
9. The respondents have not chosen to file counter affidavit. Learned S.C. Karbi Anglong Autonomous. Council was requested to obtain instruction in the matter and to produce the departmental proceeding file. He has been furnished with letter dated 8.2.2007 by the District Primary Education Officer, K.A.A.C., Dihpu intimating that the proceeding file is not traceable. However, he has been furnished with the copy of the enquiry report and some other documents which are all photo copies.
10. The inquiry report was submitted on 23.3.2000 and on a bare perusal of the same, it is seen that there was no enquiry worth the name. There is no indication in the report that any witness and/or documents were examined during the enquiry proceeding. The enquiry report itself reveals that the methodology adopted by the Enquiry Officer was to visit the school and to have consultation with the local people. They were asked about the purported irregularity committed by the petitioner and on the basis of their information the Enquiry Officer returned the finding of guilt against the petitioner. The people who were examined were not the cited witness and they were examined by the Enquiry Officer visiting them along with one Shri Jaising Ingti whose identity has not been disclosed. The petitioner was not provided with any opportunity to cross-examine the people whose information was relied upon by the Enquiry Officer. Adding insult to the injury, the petitioner was also not furnished with the copy of the enquiry report enabling him to make representation against the same.
11. Mr. Deka, learned Sr. Counsel representing the petitioner pointing out the above irregularity of the Enquiry proceeding has further submitted that the charges levelled against the petitioner are all vague and indefinite. Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 requires the disciplinary authority to frame definite charges on the basis of the allegations on which the enquiry is proposed to be held. On a bare perusal of the three charges levelled against the petitioner, it will be seen that the charges are all indefinite and vague. While framing the charges against the petitioner no material particulars were disclosed as to on what basis the charges were levelled against the petitioner. The charge-sheet also did not accompany the list of witnesses and documents which is mandatory requirement as per Rule 9 (2) of the aforesaid Rules of 1964.
12. The documents produced by Mr. Banik, learned S.C., K.A.A.C. did not indicate that there was any examination of any witnesses) be it from the side of disciplinary authority or from the side of the petitioner. There is also nothing to show that the defence statement of the petitioner was recorded in the enquiry proceeding. In fact, it is the definite case or the petitioner that there was no enquiry worth the name and everything was done behind his back. When the enquiry report itself reveals that no enquiry proceeding as envisaged in the rules had been conducted, the authority could not have imposed the extreme penalty to the petitioner discharging him from service on the basis of the said farcical enquiry.
13. Apart from the above, the order of discharge dated 9.10.2001 also does not indicate that the petitioner was discharged from service pursuant to the departmental proceeding. In the impugned order there is no indication of the departmental proceeding which was initiated against the petitioner. He was simply discharged from service stating that such discharge was due to gross negligence of duty. If the impugned order was passed on the basis of the aforesaid departmental proceeding, same is not sustainable in law and if the same was issued irrespective of the departmental proceeding then also same is not sustainable in law being violative of Article 311 of the Constitution of India as well as the provisions of the Assam Services (Discipline and Appeal) Rules, 1964.
14. In view of the above, I have no hesitation to set aside and quash the impugned order of discharge dated 9.10.2001. The petitioner shall be deemed to be in service all through out. He shall be entitled to 50% of the back wages for the period during which he remained out of employment, i.e. from 9.10.2001 till such time he is reinstated in service by issuing appropriate order by the respondents which shall be done forthwith.
15. Writ petition is allowed to the extent indicated above. There shall be no order as to costs.