WP(C) 5016/2007 BEFORE HON’BLE MR JUSTICE AMITAVA ROY JUDGMENT AND ORDER(ORAL) The extra-ordinary jurisdiction of this Court has been invoked t o annul the departmental proceeding initiated against the petitioner by the Memo randum of charges dated 21.9.2005 / 22.09.2005 issued by the Secretary, Assam Hi gher Secondary Education Council( hereafter referred to as the ’council’) as wel l as, the impugned order of penalty of removal dated 1.12.2006 also by the same authority. 2. I have heard Mr RC Saikia, learned counsel for the petitioner and M r KH Choudhury, Senior Advocate representing the Council being assisted by Mr SK Mukhtar, Advocate . 3. The rival pleadings in short , are indispensable for appropriately appr eciating the competing arguments advanced. The petitioner who , at the relevant time was serving as a L.D.A.-Cum- Typist with the Council and had been entruste d with the duties of Dealing Assistant pertaining to the works related to the H S Ist Year Examination,2005(for short hereafter referred to as ’Examination’) i n respect of the institutions of Cachar, Karimganj and Hailakandi Districts, was served with the aforementioned Memorandum of charges setting out the following imputations :- CHARGE NO.1 : That while entrusted duties as a Dealing Assista nt pertaining to works related to H.S. First Year Examination ,2005 in respec t of the Institutions of Cachar, Karimganj and Hailakandi Districts ,you had rec eived filled in examination forms in respect of 175 candidates set up for H.S. Ist Year Examination,2005 by one Oxford Senior Secondary School through Lakhipu r Jr. College, Cachar, after the last date stipulated for submission of examina tion forms by the Council and endorsed to Accounts Branch (receipt counter) for receiving fees, without bringing into the knowledge of your superior authority . You have done so, to facilitate those 175 irregular students for appearing in the H.S. Ist Year Examination,2005 at Earle H.S, School Examination Centre for undue consideration and thereby placed the whole Council into dark and disreput e. You are, therefore, charged with act of Insubordination and dereliction of official duties. CHARGE NO. 2 : That for receiving examination forms in respect of 175 irregula r students, you have collaborated with one Sri Monikanta Sarma , a part time vo cational Teacher of Earle H.S. School and thus involved in criminal conspiracy with Monikanta Sarma this illegal act for your personal gain. You are, therefore, charged with misconduct and commission of act agains t the interest of the Council. CHARGE NO.3 : It is found in the course of enquiry by the Enquiry Commit tee that the forms received by you were Photostat copies of original forms and were found to have tampered. You did not take even minimum car to verify th e forms in respect of those 175 candidates. You have also deliberately ignored to impose delay submission fine in respect of 175 candidates amounting to Rs.35 00/- causing loss to the Council for your personal benefit. 4. On being served with the Memorandum of charges, the petitioner o n 28.9.2005 made a request with the Secretary of the Council to allow him to in spect some documents as desired by him which inter alia included the enquiry report in the preliminary enquiry referred to in the Memorandum. Thereby, he a lso requested to be heard in person and to be allowed to be furnished with the P hotostat copy of the said enquiry report. The records reveal that along with t he Memorandum of charges, the Council had furnished the list of documents and wi tnesses. Whereas, the document sought to be relied upon by the disciplinary auth ority was disclosed to be the preliminary enquiry report, the witnesses were th e persons who were examined in course thereof. 5. According to the petitioner, inspite of the request being made, he w as only allowed to inspect a few of the documents desired and was furnished wi th the extract of the enquiry report, but was denied access to the others. Notwi thstanding the above, he submitted his reply to the charges denying the same. T he Council thereafter appointed the Enquiry Officer and the Presenting Officer to conduct the proceeding and eventually on 2.8.2006 the Enquiry Officer submi tted his report holding all the charges against the petitioner to be proved. Th e second show cause notice was issued to the petitioner indicating that the pen alty of removal from service under Rule 7(6) of the Assam Services(Discipline a nd Appeal) Rules,1964 (hereafter referred to as the ’Rules’) was proposed and h e was thereby asked to submit his show cause. The petitioner responded to the sa id notice reiterating his earlier pleas contending inter alia that no copy of t he enquiry report had been furnished to him. He iterated his stand of not being furnished with the statement of witnesses recorded in the departmental proceedin g. He also highlighted the denial of necessary documents to him before the en quiry. He also contended that he had been denied the opportunity of cross examin ing the witnesses of the disciplinary authority and producing his witnesses in defence. He pleaded that the witnesses of the disciplinary authority were exam ined in his absence. According to him, the Enquiry Officer relied on the report of the preliminary enquiry without affording any opportunity to him to cross e xamine the witnesses whose statements in course thereof(preliminary enquiry) ha d been recorded and used against him. Without prejudice to his above stand, he h owever, tendered his unconditional apology citing it to be his first omission i n course of long tenure of service. By the impugned order, the penalty of remov al had been imposed on him. 6. The Council in its counter while affirming that at the relevant time, the petitioner had been associated with the duties to receive and take th e forms in respect of the students of Cachar, Karimganj and Hailakandi districts seeking to appear in the impending Ist Year Higher Secondary School Examination s ,has endorsed the charges brought against him . According to it, the prelimi nary enquiry based on the report of the Assam Higher Secondary Teachers Associa tion had disclosed a large scale anomaly in connection with the Higher Secondary Final Examination,2005. It however, denied the imputation of violation of the p rocedural safeguards as projected by the petitioner. Asserting that the omiss ion and commission on his part amounts to gross misconduct for which the imp ugned penalty had been rightly imposed, the Council has pleaded against any int erference therewith by the Court. 7. In his affidavit-in-reply, the petitioner while reiterating his a verments in the writ petition insisted inter alia that the Enquiry Officer had based his findings on the preliminary enquiry report and the statemens t of wit nesses recorded therein. The additional pleadings of the parties are elaborati on of their assertions as set out hereinabove and therefore ,need not be traver sed in details. 8. In course of the arguments , it having transpired that the Enqui ry Officer’s report in fact, had not been furnished to the petitioner before bei ng called upon to respond to the second show cause notice indicating the propo sed penalty, by order dated 21.4.2009 this Court directed the Council to furnis h a copy thereof to the petitioner so that he may demonstrate the prejudice cau sed to him by such omission. It is submitted at the Bar that thereafter on 29. 4.2009 a copy of the enquiry report was furnished to the petitioner by the Counc il. 9. Mr Saikia has urged that the departmental proceeding being vitia ted by the non observance of the essential procedural safeguards contained in Ru le 9 of the Rules, the same is per se non est in law and therefore, the impugned order of penalty is liable to be set aside. According to the learned counsel, neither the petitioner was allowed to cross examine all the witnesses of the dis ciplinary authority, nor, he was permitted to adduce the evidence of his witnes ses. He reiterated the petitioner’s grievance of not being allowed to inspect all the documents which he sought and also contended that he(petitioner) was no t allowed the assistance of a defence assistant to conduct the proceeding on hi s behalf. While contending that the non furnishing of the preliminary enquiry r eport on which the Enquiry Officer had relied in support of the charges, per se vitiated the proceeding, Mr Saikia has further urged that the failure on the part of the Council to supply a copy of the Enquiry Officer’s report before re quiring him to submit his reply to the second show cause notice is to be constru ed as fatal and therefore, in any view of the matter, the departmental proceedi ng ought to be annulled. While admitting that the petitioner at the relevant t ime as the Dealing Assistant of the Council had been entrusted with the matters pertaining to the impending Ist Year Higher Secondary Examination, 2005, the learned counsel has urged that the acceptance of the examination forms of 1 75 candidates duly signed by the Principal of Lakhimpur Junior College and cou nter signed by the Officer-incharge of the Earle HS School Examination Center c annot be construed to be a misconduct on his part and that therefore, the char ge to that effect is misconceived. Mr Saikia has submitted that as there are several instances in the Council of realization of late fine in connection with the delayed submission of examination forms, the finding of the Enquiry Officer and the Disciplinary Authority holding that the charges against him had been pr oved and that too in absence of any material whatsoever in support thereof, is on the face of the record arbitrary and perverse. He has also contended that a s on a similar charge a Grade IV employee of the Council allegedly involved in t he same episode has been let off with a minor punishment, the impugned order of penalty of removal is not only disproportionate but , is discriminatory as well. In support of his submission, Mr Saikia has placed reliance on the following de cisions of this Court :- (1) (2001) 3 GLT 209, Barun Roy vs. State of Assam and Ors ; (2) (2003) 1 GLT 57, Khargeswar Borah vs. State of Assam and Ors; (3) (2005) 3 GLT 154, State of Manipur vs. Chongtham Homendro Singh; (4) (2007) 1 GLT 648, Mahendra Kr. Singh vs. U.O.I. 10. Mr Choudhury in reply, with reference to the official records pertaini ng to the departmental proceeding, has maintained that the assertions of contra vention of the mandates of Rule 9 being untenable on facts, the challenge to t he departmental proceeding based thereon is liable to be rejected. Pointing out in particular, the relevant portions of the Enquiry Officer’s report, the learn ed Senior counsel has argued that it would be apparent therefrom that the peti tioner was afforded all reasonable opportunities of defending himself and that it was he who volunteered against examining any witness or cross-examining the witnesses of the disciplinary authority. Mr Choudhury however, admitted the la pse on the part of the Council in furnishing a copy of the Enquiry Officer’s rep ort to the petitioner before being called upon to submit the reply to the propos ed penalty of removal from service. He submitted that in compliance of the orde r of this Court , the said document had been supplied to the petitioner on 28.4 .2009. The learned Senior counsel added that the facts and circumstances of the case and the admissions on the part of the petitioner on significant factual a spects, non supply of the Enquiry Officer’s report in time did not prejudice hi m in any manner and therefore, the same has no relevance vis a vis the assailmen t on the disciplinary proceeding. Mr Choudhury was categorical that not only t he preliminary enquiry did not as such relate to the charges levelled against the petitioner in the departmental enquiry, the same was by no means relied upon by the Enquiry Officer in concluding that the same(charges) had been proved. The learned Senior counsel on being queried by this Court ,however, has admitte d that none of the witnesses whose names had figured in the list of witnesses accompanying the documents had been examined by the disciplinary authority in t he proceeding and that the list of the persons who had been so examined had not been furnished to the petitioner either prior to or in course of the proceedi ng. While refuting in specific terms, the permissibility of realization of late fee after the acceptance of the examination forms as a matter of routine in t he Council , the learned Senior counsel has contended that in the eventualities of such kind, the concerned authorities might have taken a liberal outlook at times which by no means did empower the petitioner to resort to the same unila terally on his own. While endorsing the disciplinary action taken by the Co uncil against the petitioner , the learned Senior counsel without prejudice to the stand , has urged that in case, this Court holds the disciplinary proceeding to be not sustainable in law, it (council) , in the interest of organizational discipline be permitted to resume the proceeding from the stage of the furnish ing of the copy of the Enquiry officer’s report to the petitioner. Mr Choudhur y distinguished the authorities sought to be relied upon by the petitioner conte nding that the same had been delivered in different contextual facts. 11. The pleadings and the arguments have received the due considerat ion. A bare reading of the charges levelled against the petitioner brings out t he following features :- i) he , at the relevant time was the Dealing Assistant of the Council entr usted with the works related to HS First Year Examination,2005 in respect of th e institutions of Cachar, Karimganj and Hailakandi Districts ; ii) he had received filled in examination forms in respect of 175 candidat es set up for H.S. Ist Year Examination,2005 by one Oxford Senior Secondary Sc hool through Lakhipur Jr College, after the last date stipulated for submission thereof ; iii) he had endorsed such forms to the Accounts Branch for receiving fees, wi thout bringing it to the knowledge of his superior authority, thereby exposing the Council to disrepute ; iv) he collaborated with one Sri Manikanta Sarma, a part time vocational Tea cher of Earle H.S. School in receiving such forms; v) the forms which were Photostat copies were tampered and that he before a ccepting the same did not even take the minimum care to verify the same ; vi) he deliberately ignored to impose delay submission fee in respect of such candidates amounting to Rs.3500/- thus causing loss to the Council for his personal benefit. 12. The petitioner because of his above acts and omissions was charge d with the misconduct, insubordination, dereliction of official duties, willful negligence ,indiscipline, manipulation of official documents prejudicial to th e interest of the council. The written reply submitted by the petitioner to the charges reveals his plea that on 10.2.2005 while he was acting as a Dealing Ass istant of the Council with the duties and the responsibilities enumerated herei nabove, one gentleman had approached him introducing himself to be the Principa l of Lakhipur Jr. College, Cachar and requested him to accept the filled in for ms in respect of 175 candidates of the said college and that he had informed the said gentleman that the last date for submission of examination forms without f ine had already been expired on 1.2.2005, but the same can be accepted only afte r payment of the latet fine @ Rs.20/- per candidate. According to him, the said gentleman intimated him that he did not have enough money towards the late fine tobe paid immediately and requested him to accept the forms assuring that the am ount would be paid before the commencement of the examination. However, as the p etitioner had to remain busy in connection with the aforesaid works from the sec ond week of February,2005 to the Ist week of April,2005 , he did not get time to verify the records which were submitted by the Principal, Lakhimpur Junior Coll ege in respect of the said candidates. As soon thereafter the records were seize d, he could not take necessary steps for realization of late fine. He insisted to have acted bonafide on the request of the Principal, Lakhimpur Jr College .He also maintained to have intimated the said gentleman that in case the late fine was not paid before the commencement of the examination, the results of the can didates would be withheld. He also referred to the subsisting practice of the C ouncil of receiving forms by the Dealing Assistant even belatedly , in case of urgency. He, however, denied his involvement or association with one Moni Kant a Sarma as alleged. According to him, the forms were in order and also cited th e instances of delayed forms received by the Council in the past. He reiterated that the examination forms were accepted on the assurance of the Principal, La khimpur Jr College that the late fee of Rs.3500/- would be paid before the comme ncement of the examination. 13. The Enquiry Officer’s report though indicates that the document s offered in the proceeding included the preliminary enquiry report and the stat ements amongst others of Mani Kanta Sarma, Vocational Teacher and the Principal , Lakhipur Junior College, the text of the Enquiry Officer’s report per se does not very demonstratively evidence any reliance thereon. It, however, discloses that as many as 11 witnesses were cited by the disciplinary authority different from those figuring in the list accompanying the memorandum of charges. As a m atter of fact, the Enquiry Officer’s report contains a reference of only two wi tnesses therefrom namely, Jitram Dutta and Bapan Barman. Noticeably, the Enquiry Officer had recorded that during the enquiry the petitioner had been repeatedl y asked as to whether he wanted to inspect any other document and examine/cross examine any other witness , but he declined to do so. On a consideration of the evidence before him, the Enquiry Officer , returned a finding that the petiti oner had received the examination forms of 175 candidates after the due date wit hout the prior approval of the authority concerned. According to the Enquiry Off icer, as a responsible official of the Council, the petitioner ought to have ver ified the identity of the person presenting the examination forms after the due date and that too without payment of the late fine. He also recorded that the Ph otostat copies of the forms were tampered. On a scrutiny of such forms, the Enq uiry Officer also came to the finding that the same were not countersigned by t he Principal of Earle Higher Secondary school. The failure on the part of the pe titioner to realize the late fine was construed to be an act adverse to the in terest of the Council. The Enquiry Officer in the facts and circumstances also i nferred a collusion of his with Sri Mani Kanta Sarma. 14. The official records when cross checked with the grievances raised on behalf of the petitioner seem to endorse the same to a great extent. The depart mental proceeding admittedly had been drawn up under the Rules and was professe d to be conducted in terms of Rule 9 thereof. In terms of Rule 9(2) at the time of delivering the charges, the Disciplinary Authority is to invariably furnish to the delinquent officer the list of documents and the witnesses by which each article of charge is proposed to be sustained. Admittedly, none of the witnesse s cited in the list accompanying the memorandum of charges had been examined by the disciplinary authority in support of the charge. There is nothing on record to indicate that the petitioner was intimated of the list of fresh witnesses in connection therewith which is an apparent violation of the letter and spirit of Rule 9(2) of the Rules. The official records reveal that in response to the p etitioner’s reply to inspect the documents referred to in his application dated 28.9.2005, he was permitted to do so and was intimated of the decision to tha t effect by letter dated 18.10.2005 issued by the Secretary, Assam Higher Second ary Council. The petitioner has admitted that some of the documents specified by him in fact, were thereafter allowed to be inspected by him. He has admitted further that the extracts of the preliminary enquiry report were also supplied to him. The proceedings of the departmental enquiry further reveal that on 3.5. 2006 the petitioner was allowed to inspect all the documents of his choice. Hen ce, his plea of denial of opportunity of inspecting the documents in the esti mate of this Court cannot be sustained. 15. The records of the departmental proceeding however, do not estab lish that the same was conducted scrupulously in the manner as contemplated in Rule 9. Though the documents of the proceeding demonstrate the presence of the petitioner in course thereof, the same do not unmistakably endorse that the wi tnesses examined on behalf of the disciplinary authority were cross examined b y him. Though the Enquiry Officer in his report has in clear terms ,observed t hat the petitioner had declined that opportunity when offered , except such a statement in the report there is no other tangible material in the proceeding o f the departmental enquiry to support the same. As a matter of fact, the records relating to the proceeding demonstrate a summary approach by the Enquiry office r which per se is opposed to the scheme as outlined in Rule 9 of the Rules. In o ther words, the scrutiny of the records of the disciplinary proceeding leaves this Court with the impression that the same was not administered in terms of framework of Rule 9 and in phases as contemplated therein, assuredly, to sec ure the necessary procedural safeguards to the delinquent officer so that no pre judice is caused in his defence . The failure on the part of the disciplinary au thority to furnish him with a copy of the Enquiry Officer’s report to the petit ioner before requiring him to submit an explanation to the proposed penalty o f removal from service is also transgrassive of the Rules, per se causing prejud ice to him. 16. On a totality of the considerations as above, this Court is there fore constrained to hold that the departmental proceeding conducted against the petitioner has been furthered in contravention of the letter and spirit of Rule 9 of the Rules and therefore being vitiated in law has to be interfered with. O rdered accordingly. 17. In order to decide the next course of action, this Court cannot be oblivious of the admitted facts. As observed hereinabove, the petitioner who at the relevant time was a Dealing Assistant of the Council was entrusted amongs t others with the responsibility of accepting the examination forms for the impe nding Higher Secondary Ist Year examination scheduled to be held in the month of March,2005. The instructions received from the Controller of Examinations date d 2.2.2005 for the Examination Branch in this regard(Annexure-8 to the writ peti tion) on which much reliance has been placed by the petitioner in clear terms ma ndate the payment of delay fine @ Rs.20/- per candidate ,subject to the conditi on that the quantum of delay fine payable by the institution shall not be less t han Rs.50/-. This stipulation as the above document demonstrates, is for the submission of the examination forms on or before 11.2.2005, the