Minati Bora, Lakhimpur Vs. The State of Assam Represented by the Commissioner and Secretary Dispur and Others - Court Judgment

(Oral).

1. Heard Mr. B.K. Bhattacharjee, learned counsel for the petitioner. Also heard Mr. J. Abedin, learned Standing Counsel, Education Department. I have also heard Mr. R.K. Bora, learned counsel representing respondent Nos. 3 and 4. By means of this writ petition, the petitioner presently serving as Assistant Professor of Lakhimpur Girls College, has challenged the Annexure-J and K orders dated 18/12/2012 and 15/12/2012, by which she has been imposed with the penalty of withholding of 3 (three) increments with cumulative effect.

2. The petitioner was issued with the Annexure-D show cause noted dated 23/05/2012 with the following allegations:-

“1. That while on duty, you remained absent unauthorizedly on 26/04/2007 without any intimation to the college authority either verbally or through any leave application. You are therefore charged with gross misconduct, dereliction, negligence of duty and insubordination on your part for unauthorized absence.

2. That, it was found that, you put your signature falsely in the College Attendance Register for the day i.e. 26/04/2007 on which date you remained unauthorisedly absent. You are therefore charged with gross misconduct for putting your signature falsely in the College Attendance Register for the date you remained absent.

3. That, while on duty, you went to Guwahati on 25/04/2007 without taking prior permission from the College Authority and thereafter lodged a complaint against the college authority before C.I.D. Office at Ulubari, Guwahati on 26/4/2007 without any authority. You are therefore charged with gross indiscipline, gross misconduct and insubordination.

4. In spite of the CPF matter being solved in the presence of members of the enquiry committee and Teachers representatives of the unit in a meeting held on 26/2/2007 convened by the Principal, you approached the CID with a complain on this settled matter. You are therefore charged with insubordination to the college authority.

5. If you are dissatisfied with the solution of CPF issue, why did you deposit your Government shares of CPF in two parts in the North Lakhimpur Treasury vide challan no 05152 dtd. 7/4/2006 and no. 5/39049 dtd. 20.12.2006 and accepted one part of your own share of CPF money on 1/1/2006. This being the fact you still lodged a complaint against the authority with the CID. This is a matter of indiscipline on your part.

6. Besides, you made a press statement in the Asomiya Pratidin, by forging signature of Dr. Basanti Dihingia, Associate Professor, Deptt. of Home Science, Lakhimpur Girls College (one of the three signatories), alleging the anomalies of the CPF of Lakhimpur Girls College on behalf of the Teachers Unit of the College without their decision in this regard. It is a case of gross misconduct on your part, which has tarnished the image of the college.”

3. Although the show cause notice was issued under Rule 9 of the Assam Services (Discipline and Appeal) Rules, but the same was not accompanied with the list of documents and witnesses as mandatorily required. Be that as it may, the petitioner in her reply vide Annexure-F dated 06/08/2012 denied the charges. Thereafter the petitioner was furnished with the copy of the enquiry report vide letter dated 07/11/2012. The enquiry report is dated 08/10/2012. As per the enquiry report, the charge No.1, 2 and 6 were not established in the enquiry. However, the other charges, namely, charge No. 3, 4 and 5 as per the enquiry report, stood established. The petitioner being furnished with the copy of the enquiry report submitted her reply vide Annexure-I representation dated 21/11/2012. Thereafter the Governing Body of the College vide its resolution No.1 adopted in its meeting held on 18/10/2012 decided to impose the penalty of withholding of 3(three) increments with cumulative effect and the same was communicated to the petitioner vide Annexure-J impugned letter dated 18/12/2012. The Director of Higher Education, Assam, also approved the resolution of the Governing Body vide Annexure-K impugned order dated 15/12/2012.

4. As will be evident from both the impugned orders, the penalty of stoppage of 3 (three) increments with cumulative effect was imposed on the petitioner as per the resolution of the Governing Body adopted in its meeting held on 18/10/2012. But on the other hand the petitioner was provided with the copy of the enquiry report after the decision vide Annexure-G letter dated 07/11/2012. This being the position, it was inconsequential for the petitioner to make the Annexure-I representation dated 21/11/2012.

5. From the above what has emerged is that the Disciplinary Authority took the decision to impose the penalty even before the petitioner was furnished with the copy of the enquiry report and she could furnish reply against the same. Above apart, it is the specific case of the petitioner that the witnesses mentioned in the enquiry report had been examined behind the back of the petitioner and she was not provided with any opportunity to cross examine them. In the Counter affidavit filed by the respondent College, the said plea of the petitioner has not been denied. What has been stated is that the petitioner did not ask for the opportunity to cross examine. It is not the question of asking for the opportunity to cross examine. As per the requirement of the procedure, the witnesses were required to be examined in presence of the delinquent official enabling her to cross examine.

6. As to what are the charges leveled against the petitioner has been noted above. The charge No. 3 and 4 are in respect of lodging of the complaint before the CID at Guwahati on 26/04/2007 which according to the Disciplinary Authority was against the interest of the College. As regards the charge No. 1 and 2, the enquiry Officer has held the petitioner not guilty of the same but on the other hand the allegation made in charge No. 3 is that she had lodged the complaint with the authority on 26/04/2007 on which date she was allegedly absent from duty but per contra, the charge No. 1 and 2 relating to the same allegation of unauthorized absence have been held to be not established in the enquiry. Charge No. 4 is in respect of the CPF deposits which according to the Disciplinary Authority was resolved in a meeting of the teachers Unit held on 26/02/2007. If the petitioner was aggrieved by any purported anomaly in respect of CPF deposit, she was within her competence and jurisdiction to lodge complaint and for that she could not have been charge-sheeted. Same is the case in respect of charge No. 5.

7. Above being the position, apart from the procedural irregularity in conducting the departmental enquiry, the charges leveled against the petitioner themselves are not in the nature of any misconduct attributable to the petitioner in discharge of her official duty. However, at the same time there is no gain saying that the petitioner being the part and parcel of the College as its Assistant Professor must not indulged herself in any such activities which might be considered detrimental to the interest of the College. As per the counter affidavit filed by the College Authority, everything was done by the husband of the petitioner. If that be so, the petitioner could not have been picked up for a departmental proceeding, but at the same time, the petitioner will also bear in mind that in the affairs of the College, she must not involved any 3rd party.

8. With the aforesaid note of caution, the writ petition is allowed interfering with the impugned Annexure-J and K orders dated 18/12/2012 and 15/12/2012. The petitioner will be entitled to all consequential benefits.

9. The writ petition is allowed to the extent indicated above, without however, any order as to costs.