WP(C) 4364/2008 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (CAV) Katakey, J. The petitioner, who is presently working as Deputy Registrar in the Principal Seat of this Court, by the present petition has challenged the ord er dated 18.12.2006 passed by Hon’ble the Chief Justice imposing punishment of r eversion in Grade from Deputy Registrar to Assistant Registrar as the junior mos t in the said cadre and for treating his period of suspension as on duty with pa y equivalent to the allowances already paid during that period. [2] The petitioner was initially appointed as Lower Division Clerk i n Aizawl Bench of this Court on 01.09.1990 and thereafter, was promoted as Upper Division Clerk on 03.03.1992. He was appointed as Secretary to Hon’ble the Chi ef Justice on 16.12.1997. Vide order dated 18.07.2003 the petitioner was promo ted to the post of Deputy Registrar with effect from 12.08.2002. While discharg ing his duties as Secretary to Hon’ble the Chief Justice in the Principal Seat a t Guwahati the petitioner took admission into the 1st year and 2nd year LL.B. Co urse on 12.11.2001 and 11.11.2002, respectively, in Royal Academy of Law, Oinam , District- Bishnupur in the State of Manipur. The petitioner on 23.04.2003 fil ed an application before the Registrar General of this Court seeking permission to study the LL.B. Course for the session 2002-03 without hampering his normal o fficial duties as Secretary to Hon’ble the Chief Justice contending that though pursuant to the earlier permission granted by the Registry he took admission, he , however, could not prosecute the study due to some personal difficulties and c omplete the Course. The Registrar (Administration) on 02.06.2003, on the basis of the said application, granted permission to prosecute the study in LL.B. Cour se without affecting the normal duties in any manner with further condition that the said permission may be withdrawn at any time in the interest of service, if so required. The petitioner after completion of the Course and obtaining the de gree of Bachelor of Law from Manipur University in the year 2005 filed an applic ation on 02.05.2005 before the Registrar General for recording the said qualific ation in his Service Book. The Registrar (Administration), thereafter, vide comm unication dated 01.10.2005 asked the petitioner to furnish a copy of the purport ed permission accorded to him to prosecute law studies as, according to the Regi stry, it was subsequently found that though in the application dated 23.04.2003 the petitioner mentioned about granting of the permission by the Registry to pro secute study, no such permission was available. By the said communication the p etitioner was also asked to furnish information relating to the period during wh ich he attended the college in Manipur; his total days of attendance, month-wise and year-wise and the leave, if any, availed by him during the period of his st udy in Manipur. The petitioner vide communications dated 05.10.2005 and 07.11.2 005 replied to the aforesaid communication dated 01.10.2005. On 16.11.2005 he w as placed under suspension in contemplation of drawal of the departmental procee ding. [3] The disciplinary authority upon consideration of the replies fil ed by the petitioner decided to hold a departmental proceeding against him and a ccordingly the Registrar General issued the show cause notice on 23.06.2006 unde r Rule 23 of the Gauhati High Court Service (Appointment, Condition of Service a nd Conduct) Rules, 1967 (in short, 1967 Rules ) read with Article 311 of the Co nstitution of India, asking the petitioner to show cause as to why any of the pe nalties laid down in Rule 22 of the said Rules should not be inflicted on him on the charges mentioned therein. The petitioner was also supplied with the state ment of allegation and the list of witnesses and list of documents to be relied upon by the disciplinary authority in the said proceeding, alongwith the aforesa id charge memo dated 23.03.2006. The petitioner submitted his reply on 08.04.200 6. Those charges, however, were amended, which was communicated by the Registra r General on 29.05.2006 to the petitioner, thereby leveling 5 (five) charges aga inst him. The statement of allegation, additional list of witnesses and addition al list of documents were also furnished to the petitioner alongwith the said am ended charge memo. The petitioner, on 30.06.2006 in continuance of his earlier r eply dated 08.04.2006, submitted the written statement of defence denying the ch arges levelled against him and requesting the disciplinary authority to drop the disciplinary proceeding initiated against him by revoking the order of suspensi on with all service benefits. [4] Being not satisfied with the reply to the charges levelled, the disciplinary authority decided to proceed with the enquiry by appointing the Enq uiry Officer to enquire into the charges levelled against the petitioner, who on completion of the enquiry submitted his report on 23.11.2006 holding that all t he 5(five) charges levelled against the petitioner are proved. The Registrar Ge neral on 29.11.2006 furnished a copy of the enquiry report to the petitioner giv ing an opportunity to make representation against such finding and also to show cause under Rule 24 of the 1967 Rules as to why any of the penalties prescribed in Rule 22 of the said Rules should not be imposed on him. The petitioner on 02 .12.2006 submitted his representation contending that the findings recorded by t he Enquiry Officer in his report are not based on evidence and there are no mate rials to hold that the charges against him are proved. The petitioner, therefor e, prayed for re-statement in service by revoking the order of suspension with a ll consequential service benefits. [5] The Hon’ble Chief Justice, upon consideration of all the relevan t materials, accepted the findings of the Enquiry Officer and imposed the penalt y, as noticed above, vide order dated 18.12.2006. Consequential order was, ther eafter, issued by the Registrar General on 17.01.2007 reverting the petitioner t o the post of Assistant Registrar. The appeal to Hon’ble the Chief Justice file d by the petitioner on 13.03.2007 was rejected on 28.11.2007. The petitioner, h owever, during pendency of the writ petition subsequently promoted to the post o f Deputy Registrar from the post of Assistant Registrar. [6] We have heard Mr. PK Tiwari, learned counsel for the petitioner and Mr. SS Dey, learned Standing Counsel, Gauhati High Court appearing for the r espondents. [7] Mr. Tiwari, learned counsel for the petitioner referring to char ge Nos.1 and 2 levelled against the petitioner submits that though they relate t o the allegation of taking admission in the 1st and 2nd year LL.B. Course withou t permission of the competent authority, it is evident from the records of the e nquiry proceeding that on 06.01.1991, the Registry earlier accorded permission t o take admission in LL.B. Course during the year 1991 and the petitioner, for so me reasons having failed to take admission and complete the Course, obtained ver bal permission from the then Hon’ble Chief Justice in the year 2001 and accordin gly took admission into the 1st and 2nd year LL.B. Courses on 12.11.2001 and 11. 11.2002, respectively. It has also been submitted that the petitioner referring to the earlier permission granted filed an application on 23-04-2003 (Exhibit-5 3) before the Registrar General to allow him to prosecute the LL.B. Course for t he session 2002-03, which was granted on 02.06.2003 by the Registrar (Administra tion), on approval of the then Hon’ble Chief Justice. It has also been submitte d that the factum of the approval of the Hon’ble Chief Justice allowing the peti tioner to prosecute the LL.B. Course is also evident from the evidence of Sri Ma hesh Sarma (witness No.2) and Smti. C.S. Marak (witness No.7) examined by the di sciplinary authority in the disciplinary proceeding conducted against him. The fact that the petitioner was earlier granted permission on 16-07-2003 (Exhibit-1 2) by the then Hon’ble Chief Justice has also been supported by grant of earned leave from 21.07.2003 to 13.08.2003 by the then Hon’ble Chief Justice, so as to enable the petitioner to appear in the LL.B. examination. [8] The learned counsel submits that it appears from the records tha t the petitioner never kept either the Registry or the then Hon’ble Chief Justic e in dark by taking admission and pursuing with the LL.B. Course under Manipur U niversity. The conduct of the petitioner, according to the learned counsel, the refore, is bonafide and cannot in any stress of imagination be termed as malafid e, so as to invite disciplinary action against him for taking admission and in p ursuing the LL.B. Course. It has also been submitted that since neither the 196 7 Rules nor any instruction issued by the authority requires obtaining prior wri tten permission of the competent authority to take admission in any course of st udy, the allegation of taking admission without permission even if taken to be t rue, does not violate any Rules or instruction issued, so as to entail the disci plinary action against the petitioner. [9] Referring to the 1967 Rules, Mr. Tiwari submits that the discipl inary action against an employee/officer can be taken only in the event of commi ssion of any misconduct as enumerated in Rules 42 to 61 of the 1967 Rules and si nce taking admission in any Course of study without permission does not constitu te a misconduct within the meaning of 1967 Rules, no disciplinary action can be taken against the petitioner on the basis of such allegation. The ex-post-facto › approval of taking admission to LL.B. Course by granting permission by the Reg istrar (Administration) on 02.06.2003 as well as granting the leave to appear in the examination of 1st year LL.B. Course by the then Hon’ble Chief Justice on 1 6.07.2003 has validated the initial conduct of the petitioner, event if, taking admission in any Course of study without permission amounts to misconduct, submi ts the learned counsel. The learned counsel further submits that the charge of not maintaining the devotion to duty and absolute integrity and acting in a mann er unbecoming of a public servant and abuse or misuse of official power and posi tion as levelled in the charge memo could not be proved by the disciplinary auth ority in the proceeding conducted against him, as it is not the allegation that the petitioner did not maintain the absolute integrity and devotion to duty as S ecretary to the then Hon’ble Chief Justice, the post which he held at the releva nt point of time, more so when the allegation of taking admission in LL.B. Cours e without permission does not relates to official work or the action or behaviou r of the petitioner as Secretary to the then Hon’ble Chief Justice. Mr. Tiwari further submits that his action in taking admission in LL.B. Course, in view of the aforesaid submission, does not amount to any act unbecoming of a public serv ant or abuse or misuse of the official position amounting to misconduct, so as t o take disciplinary action against the petitioner. [10] Referring to charge No.3 based on the allegation that the petiti oner by submitting the application dated 23.04.2003 (Exhibit-53) stating that he was earlier granted the permission to prosecute the study in LL.B. Course misle ad the authority in granting the permission vide order dated 02.06.2003 (Exhibit -54) as no permission was granted earlier, it has been submitted by Mr. Tiwari t hat it is evident from the deposition of witness Nos.2, 3 and 7 that the permiss ion dated 02.03.2003 was accorded on the approval of the then Hon’ble Chief Just ice on the basis of the application field by the petitioner, which was placed be fore him. It has been submitted that it is an undisputed fact that the petition er was earlier granted permission in writing on 06.01.1991 to prosecute the stud y in LL.B. Course during the year 1991, which, however, he could not pursue due to certain personal difficulties and as such, there was no misleading statement at all in the application filed by him on 23.04.2003, so as to mislead the then Hon’ble Chef Justice or the Registry to pass the order granting approval on 02.0 6.2003. The learned counsel further submits that since it is evident from the d epositions of the aforesaid witnesses that the application filed by the petition er was placed before the then Hon’ble Chief Justice, on whose approval, the orde r dated 02.06.2003 was issued by the Registrar (Administration), the authority o ught not to have brought the charge No.3 against the petitioner without verifyin g the fact from the then Hon’ble Chief Justice, which was not done despite the r epeated request made by the petitioner. Mr. Tiwari further submits that the cha rge No.3 is also very vague as it has not disclose who was mislead by the petiti oner by the aforesaid application dated 23.04.2003. The further submission is t hat the fact that the Hon’ble Chief Justice was not mislead by the statement mad e in application dated 23.04.2003 is also evident from the subsequent order of t he then Hon’ble Chief Justice dated 16.07.2003 granting leave allowing the petit ioner to appear in the 1st year LL.B. examination. The said charge, according t o the learned counsel, has been brought only to counter the defence of the petit ioner of grant of ex-post facto approval in relation to charge Nos.1 and 2. [11] It has also been submitted by Mr. Tiwari that the charge No.4 le velled against the petitioner on the basis of the allegation that he attended th e classes on few days in the months of October and December, for the 1st year, 2 nd year, and 3rd year LL.B. Course, in the years 2001, 2002 and 2003, respective ly, without obtaining permission from the competent authority to remain away fro m the headquarter also cannot be sustained, as the petitioner in the month of No vember, 2001 and 2002 took admission in the 1st and 2nd year LL.B. Course in Roy al Academy of Law, Oinam, which fact is also reflected in charge Nos.1 and 2. T he learned counsel, therefore, submits that the said charge has been framed agai nst the petitioner without any application of mind by the competent authority, w hich, is therefore, liable to be quashed. The basis for holding by the Enquiry Officer that the said charge against the petitioner has been proved, i.e. the ev idence of Sri Jogeswar Singh, the Principal of the said Law College and the rele vant attendance register of the College, cannot be sustained, as the proper main tenance of such attendance register is doubtful because of the evident fact that though the petitioner took admission in the 1st year LL.B. Course on 12.11.2001 and the 2nd year LL.B. Course on 11.11.2002, he was marked present on various d ates in the month of October, 2001 and 2002 in the 1st and 2nd year LL.B. Course , more so when the petitioner has taken the specific stand that he did not atten d the classes on those dates. According to the learned counsel, the charge No.4 against the petitioner, therefore, cannot be sustained on the basis of such dou btful attendance register. Mr. Tiwari further submits that the said charge of a ttendance of classes on various dates in the months of October and December, 200 1, 2002 and 2003 cannot also be sustained since there is no allegation against t he petitioner that he did not attend the duty as Secretary to the Hon’ble Chief Justice in those days. [12] Referring to charge No.5 levelled against the petitioner, it has been submitted by Mr. Tiwari that the allegation of the petitioner being person ally present in the office of the Principal of Royal Academy of Law, Oinam on 12 .11.2002, 11.11.2002 and 19.09.2003 for submitting the applications for admissio n in the 1st, 2nd and 3rd year LL.B. Course, also could not be substantiated by the disciplinary authority so as to constitute the misconduct as alleged. Refer ring to the date, i.e. 12.11.2002, on which according to the disciplinary author ity the petitioner was personally present in the college in Oinam, Manipur for t aking admission in the 1st year LL.B. Course, it has been submitted that the sai d allegation is contrary to the allegation in charge No.1 that he took admission on 12.11.2001, which reflects total non application of mind on the part of the Registrar General in levelling the charge against the petitioner. It has also b een submitted that the evidence of Sri Jogeswar Sing, the Principal of the said College, on which much reliance has been placed by the Enquiry Officer in holdin g that the said charge against the petitioner has been proved, is not at all rel iable, as this witness in relation to charge No.4 has deposed that the petitione r attended the classes in the month of October, 2001 in the 1st year LL.B. Cours e when he did not even take admission. That apart, according to the learned cou nsel, the petitioner could prove by producing the relevant documents that he was proceeding to Patna for treatment with due permission from the competent author ity on 12.11.2001 and came back after treatment only on 18.11.2001 and hence the re is no question of the petitioner being personally present in Oinam in the Sta te of Manipur on 12.11.2001, even if it is treated that there is mistake in typi ng the date as 12.11.2002 instead of 12.11.2001. The learned counsel further su bmits that the said charge cannot held to be proved against the petitioner only on the basis of the records of the College and the evidence of the then Principa l of the College that the petitioner was personally present on those days in the College for admission, in view of the positive evidence before the Enquiry Offi cer that on those dates the petitioner was present in Guwahati discharging the d uties as Secretary of the Hon’ble Chief Justice and when there is also no allega tion against the petitioner that he was unauthorizedly absent from duty on those dates in Guwahati. The learned counsel, therefore, submits that the record of t he College authority cannot be the sole basis for recording the finding that the charge against the petitioner has been proved so as to take disciplinary action against him. [13] Mr. Tiwari further submits that the act of taking admission in a ny Course of study without prior permission of the employer does not bear a forb idden quality or character so as to constitute the misconduct entailing discipli nary action against an employee. Such act of taking admission without permissio n, even if taken to be true, does not, therefore, constitute misconduct and henc e the petitioner cannot be punished for commission of any misconduct on the basi s of the allegations made against him. The learned counsel further submits that the then Hon’ble Chief Justice Mr. B.K. Roy in his order dated 26.09.2005 has a lso recorded that the petitioner pursued the LL.B. Course with due approval and sanction of the Hon’ble Chief Justice, which fact has also not been taken into c onsideration and in fact ignored by the Enquiry Officer as well as by the discip linary authority while holding that the charges levelled against the petitioner are proved. The learned counsel submits that there was no proper appreciation o f the evidences on record and the petitioner is held to be guilty against the ch arges levelled against him when there was no evidence at all to record the findi ng of guilt against him by the Enquiry Officer. Mr. Tiwari, therefore, submits that the disciplinary action taken against the petitioner needs to be interfered with and the petitioner be given all service benefits. [14] Mr. Tiwari in support of his contention has placed reliance on t he decision of the Apex Court in Nand Kishore Prasad -Vs- State of Bihar & Ors. reported in AIR 1978 SC 1277; in K.L. Tripathi -Vs- State Bank of India & Ors. r eported in AIR 1984 SC 273; in A.L. Kalra -Vs- Project and Equipment Corporation of India Ltd. reported in AIR 1984 SC 1361; in Maharashtra State Board of Secon dary and Higher Secondary Education -Vs- K.S. Gandhi & Ors. reported in (1991) 2 SCC 716; in Kuldeep Singh -Vs- Commissioner of Police & Ors. reported in (1999) 2 SCC 10; in M.M. Malhotra -Vs- Union of India & Ors. reported in (2005) 8 SCC 351; in Narinder Mohan Arya -Vs- United India Insurance Company Limited & Ors. reported in (2006) 4 SCC 713 and in Moni Shankar -Vs- Union of India & Anr. repo rted in (2008) 3 SCC 484. [15] Mr. Dey, learned standing counsel, Gauhati High Court, appearing for the respondents, supporting the disciplinary action taken against the petit ioner and referring to the records produced, submits that it is evident from the materials made available before the Enquiry Officer in the disciplinary proceed ing conducted against the petitioner that he took admission in the 1st and 2nd y ear LL.B. Course on 12-11-2011 and 11-11-2002, respectively, which is much prior to the permission granted by the Registrar (Administration) on 02-06-2003, whic h permission was also obtained by the petitioner by making misleading statement in his application dated 23-04-2003 intimating the Registrar General that he ear lier obtained the permission to prosecute the LL.B. Course in Royal Academy of L aw, Oinam in the State of Manipur. Mr. Dey submits that the service of the peti tioner being whole time within the meaning of FR-11 of Fundamental Rules and Sub sidiary Rules of Government of Assam, which Rule is applicable to the employee/o fficers of the High Court in view of Rule 37 of the 1967 Rules providing that th e Rules and orders applicable to the Government servant of corresponding classes in the service of the State shall mutatis-mutandis regulate the service of the employees/ officers of the High Court, the petitioner is to maintain the devotio n to duty with absolute integrity, which the petitioner has failed to do by taki ng admission without permission of the competent authority. The learned counsel submits that since the petitioner’s service is whole time service, the permissio n to take admission and prosecute the study of LL.B. Course, which is also a ful l time Course, is necessary as the petitioner cannot attend the classes in the L L.B. Course at the same time in Oinam in the State of Manipur while attending hi s duties at Guwahati. Taking admission without the permission to prosecute the full time Course amounts to failure to maintain devotion to duty and absolute in tegrity and the said act on the part of the petitioner is unbecoming of a public servant, which also amounts to gross abuse or misuse of the official power as S ecretary to the then Hon’ble Chief Justice, submits the learned counsel. [16] Mr. Dey further submits that the grant of subsequent permission by the Registrar (Administration) on 02-06-2003 to prosecute the study would not validate the misconduct committed by the petitioner in taking admission without permission of the competent authority, more so, when such permission was obtain ed by making misleading statement in his application seeking permission dated 24 .03.2003 to the effect that he earlier obtained permission to take admission and prosecute the study in LL.B. Course. It has also been submitted that the petit ioner being the Secretary to the Hon’ble Chief Justice has misused his official power and position by taking the earned leave to appear in the 1st year LL.B. Co urse examination without informing that he took