WP(C) 9468/2004 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. U. Bhuyan, learned counsel for the petitioner. The respondents 1 and 2 are represented by Ms. B. Das, learned Govt. Advocate. Mr. D. Barua, learned CG C appears for the Accountant Genera;(AG). 2.1 The petitioner, who retired from service on 28.2.2001 as an LDA of the Tezpur Mahkuma Parishad, has filed the instant petition to challenge the penalty order dated 21.9.04 (Annexure-P) inflicted in pursuant to a disciplinar y proceeding which started with the suspension of the petitioner on 29.5.85. He also seeks a direction on the respondents for payment of his pensionery dues and his arrear pay and allowances. 2.2. While the petitioner was posted as an LDA-cum-Cashier of the Tezpur Mahk uma Parishad, on detecting financial anomalies in the accounts of the Mahkuma Pa rishad, the petitioner was placed under suspension and an FIR was lodged and Tez pur P.S. Case No.309/85 under Section 409 IPC was registered on 29.5.85. The Cou rt of Judicial Magistrate, 1st Class, Tezpur, by his order dated 31.5.94 acquitt ed the petitioner in GR Case No.993/85 (corresponding to Tezpur P.S. Case No.303 /85) by declaring that the prosecution failed to substantiate the charge under Section 409 IPC beyond reasonable doubt. DISCIPLINARY PROCEEDING 2.3 After his acquittal, the petitioner sought reinstatement in serv ice. However, by communication dated 9.1.96 (Annexure-A), 10 years after the pet itioner was suspended, a show cause notice was issued to him with the allegation that the petitioner had misappropriated a sum of Rs.6,34,445.85 by falsifying the pay-in-slips and Bank’s statement etc. In his reply dated 7.2.96, the petiti oner denied the charges and specifically pleaded that under the provisions of Ru le-10 of the Assam Panchayati Raj (Financial) Rules, 1990 (hereinafter referred to as the Financial Rules ) the Secretary of the Mahkuma Parishad is responsibl e for the Mahkuma Parishad’s funds and the petitioner cannot held to be responsi ble if any funds are found to be misappropriated. 2.4 As the explanation furnished by the delinquent was found to be u nsatisfactory, one Shri R. N. Hazarika, the Joint Director of Panchayats was app ointed as the Enquiry Officer to enquire into the charges. As the delinquent was aggrieved by the delay in conclusion of the enquiry proceeding, an Appeal i.e. 64ATA/1997 was filed by him in the Assam Administrative Tribunal, Guwahati (here inafter referred to as the Tribunal ) on 7.2.98. The Tribunal passed an interim order in the said Appeal whereby the disciplinary authority (Respondent No.2) w as directed to expedite the proceeding against the delinquent and complete the s ame positively by 30.4.98. The Tribunal also ordered that if proceedings are not concluded within the stipulated date, the delinquent be reinstated in service o n or before 30.4.98. 2.5 After the above interim order of the Tribunal, the disciplinary authority (Respondent No.2) after purported acceptance of the findings of the en quiry officer by his order dated 27.3.98 (Annexure-D) inflicted penalty under R ule 7 of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter re ferred to as the Disciplinary Rules, 1964 ) whereby the delinquent was removed from service and the recovery of the misappropriated amount was directed. 2.6 The penalty was inflicted while the Tribunal was in seisin of th e matter and since a copy of the enquiry finding was not furnished to the petiti oner and he was denied the opportunity to cross examine the prosecution witnesse s, the Tribunal by its final order dated 6.5.98 (Annexure-E) directed that the A ppellate Authority should consider and dispose of the petitioner’s Appeal agains t the order of the disciplinary authority. 2.7 Since there was delay in disposal of the appeal by the Appellate Authority, the petitioner had to move the Tribunal second time (Case No.89ATA/1 999) where the Tribunal passed orders on 22.2.99 to expeditiously dispose of the pending Appeal. Only after the direction of the Tribunal, the Appellate Authori ty by its order dated 3.4.99 (Annexure-G) considered the deficiencies in the enq uiry proceedings and set aside the penalty order dated 25.3.97 of the disciplina ry authority. However, permission was accorded to proceed de novo against the de linquent in accordance with the Disciplinary Rules, 1964. 2.8 Although the Appellate Authority held the Enquiry to have been v itiated, the disciplinary authority disregarded the said conclusion and held tha t there was no procedural illegality in the enquiry proceeding as the Enquiry Of ficer R.N. Hazarika accorded opportunity to the delinquent to cross examine the witness and the only deficiency was non furnishing of the enquiry report to the delinquent. Accordingly, a copy of the enquiry report submitted by Shri R.N. Haz arika was enclosed to his order dated 21.6.99 (Annexure-H) and the Disciplinary Authority reiterated the earlier penalty order dated 27.3.98, which, as is alrea dy noted, was already interfered with by the Appellate Authority. 2.9 Being aggrieved by the approach of the disciplinary authority, the delin quent moved the Tribunal for a third time through the Appeal Case No.45ATA/99 an d the Tribunal by its judgment and order dated 21.10.2000 (Annexure-I) held that since the Appellate Authority had set aside the penalty, the Disciplinary Autho rity should have started a de novo proceeding and he had no authority to revalid ate the earlier penalty order, which was quashed by the Appellate Authority. How ever, considering that there has been no final conclusion on the charges against the delinquent, permission was granted to conclude the disciplinary proceeding within two months, i.e. by 21.12.2000. Direction was also given to reinstate the petitioner in service immediately. The Tribunal in fact specifically recorded t he perfunctory manner in which the Disciplinary Authority proceeded in the matte r and recorded that as the Disciplinary Authority disregarded the order of the A ppellate Authority and also the earlier direction(s) if the Tribunal, the Discip linary Authority’s conduct amounts to gross negligence of duty, indiscipline, l ack of sincerity and insubordination and it was suggested that the Govt. may pr oceed against the Disciplinary Authority itself for its lapses in conducting the proceeding. 3.1 A few months after the Tribunal’s order dated 21.10.2000, the pe titioner was reinstated in service by order dated 22.2.01. But no order for paym ent of his arrear pay and allowances was passed and it was deferred. Then seven days later, on reaching the age of superannuation, the petitioner was superannua ted from service w.e.f. 28.2.01. 2nd Enquiry 3.2 As the petitioner was not paid his retirement benefits and arrea r pay and allowances, he made several representations to his employer but instea d of passing any order on the above representations, by order dated 14.11.03 (An nexure-M) a new enquiry officer, i.e. Shri HK Baidya was appointed to continue w ith the earlier defective enquiry as in the mean time, the first enquiry officer Shri R.N. Hazarika has retired from service. The new enquiry officer was direct ed to conduct the cross examination of the witnesses by the delinquent and he wa s ordered to submit his enquiry report after completion of the cross examination . 3.3 The second enquiry officer by his communication on 11.2.04 (Anne xure 0-1) informed the disciplinary authority that as the PW Shri Madan Chandra Sinha Roy had not stated anything adverse to the delinquent, he did not want to cross examine the said witness. In so far as the second PW Shri Prabin Sarma, au ditor as he had not testified in the earlier enquiry proceeding, the cross exami nation of this witness did not arise. As regards the third witness PW Shri Parba ti Prasad Bora, the then Secretary of the Mahkuma Parishad is concerned, the enq uiry officer reported that since this witness had expired, his cross examination is not possible. 3.4 The second enquiry officer Shri H.K. Baidya merely furnished the se information to the Disciplinary Authority and did not give any enquiry report of his own although he was directed to furnish his enquiry report within 30 d ays from the Director’s order dt. 14.11.2003. 3.5 After receipt of the letter from the second enquiry officer, the disciplinary authority surprisingly took note of the first enquiry report of Sh ri R.N. Hazarika as well as a separate report given by the examiner of the Local Audits and held that the charge of misappropriation against the delinquent has been proved beyond doubt. Accordingly considering that the petitioner has alread y retired from service, the 2nd penalty was inflicted and recovery of the misapp ropriated money amounting to Rs.6,34,445.85 was directed. It was further declare d that the period of absence of the petitioner should be treated as on leave as admissible under the Rules. PETITIONER’S SUBMISSIONS 4.1 To challenge the impugned penalty as well as the disciplinary pr oceeding, Mr U. Bhuyan, learned counsel submits that when the first enquiry proc eeding conducted by Shri Hazarika was held to be vitiated because of not permitt ing the delinquent to cross examine the prosecution witnesses, and on that basis a second enquiry has been ordered, the disciplinary authority could not have re lied upon the finding given by the first enquiry officer to inflict the impugned penalty. Pointing out the procedural lapses recorded by the Appellate Authority in his order dated 3.4.99, Mr. Bhuyan submits that the Disciplinary Authority c ould not have used the adverse conclusion against the delinquent or to order any penalty on the basis of such conclusion reached by the 1st Enquiry Officer in h is vitiated proceeding. 4.2 Further submission is made by the learned counsel to the effect that no enquiry report has been given by the second enquiry officer Shri H.K. Ba idya and, therefore, it cannot be said that there has been any conclusive findin g on the charges against the delinquent and in the absence of such finding, no p enalty could have been inflicted by the disciplinary authority. 4.3 The learned counsel also submits that the only witness who testi fied against the delinquent i.e. Late Parbati Prasad Bora, the then Secretary of the Mahkuma Parishad whose responsibility it was to administer the Mahkuma Pari shad funds under Rule 10 of the Financial Rules was not permitted to be cross ex amined in the first enquiry. The witness, who expired in the meantime, was not a vailable for cross examination in the second enquiry proceeding and he being the only witness who supported the charges and the testimony of the said witness no t being subjected to cross examination, no adverse presumption can be drawn agai nst the delinquent, as the other witnesses did not support the charge. 4.4 Pointing out that there is no foundation at all to hold the deli nquent guilty of the charge on the basis of any valid enquiry, Mr. Bhuyan submit s that the entire disciplinary proceeding stands vitiated in law and, therefore, no penalty could be inflicted on the basis of such invalid proceeding. 4.5 Projecting the prejudice of the disciplinary authority against t he delinquent, Mr Bhuyan submits that in pursuant to the order passed by the App ellate Authority on 3.4.99, who set aside the earlier penalty inflicted on 27.3. 98, the delinquent was never reinstated in service till the eve of his retiremen t on 22.2.01 and bias against the petitioner is further demonstrated by the fact that, the petitioner has not been paid his salary after his removal order was s et aside on 3.4.99 till date, even after 10 years have elapsed since he retired from service on 28.2.01. 4.6 Referring to the provisions of Rule 21 and Rule 22 of the Assam Services (Pension) Rules, 1969 (hereinafter referred to as the Pension Rules ), the petitioner contends that even when a disciplinary proceeding is deemed to continue against a retired Govt servant, the employer is required to pay his pro visional pension, but in the present case no such provisional payment has been m ade, although nearly a decade has gone by since the delinquent superannuated on 28.2.01. 4.7 It is also submitted by the petitioner’s counsel that since 25.5 .85 when the delinquent was placed under suspension till his superannuation on 2 2.2.01, the petitioner was not employed anywhere and, therefore, he is entitled to his subsistence allowances/salary till he retired from service on 28.2.01. RESPONDENT’S CONTENTION 5.1 The learned Govt. Counsel is unable to justify the impugned acti on but points out the serious nature of the charges leveled against the delinque nt and submits that the petitioner must be punished for his lapses. 5.2 Mr. D. Baruah, learned CGC submits that the Accountant General, Assam was not the disciplinary authority of the petitioner and he is only a form al party in the present proceeding. DISCUSSION 6.1 Having noted the entire history of the disciplinary proceeding r ight since 29.5.85, when the petitioner was placed under suspension, I find that in the present case, that there has been grave violation of the requirement of the procedural fairness in conducting the disciplinary proceeding against the de linquent. 6.2 In the first enquiry proceeding conducted by Shri Hazarika, the delinquent was not allowed to cross examine the prosecution witnesses and on tha t basis the Appellate Authority declared that the said enquiry finding stand vit iated in law. 6.3 The disciplinary authority while accepting the first enquiry fin ding given by Shri Hazarika, disregarded the vital conclusion reached by the Enq uiry Officer that Shri PP Bora, the then Secretary of the Tezpur Mahkuma Parisha d, was solely responsible in the matter. 6.4 When the Appellate Authority by his order dated 3.4.99 set aside the 1st order of penalty of removal, inflicted in the first round, the conseque ntial reinstatement of the delinquent was not ordered. 6.5 Even in the second round, started on the basis of the Tribunal’s order dated 21.10.2000, the second enquiry officer did not give any enquiry fin ding of his own and cross examination of the sole relevant witness, Late P.P. Bo ra became impossible as he had died in the meantime. 6.6 But even without any finding of the second enquiry officer and purporting to act on the basis of the vitiated finding of the first enquiry, the disciplinary authority concluded that charges against the delinquent has been e stablished beyond doubt and, therefore, he is liable to be punished under the pr ovisions of the Conduct Rules, 1964. 6.7 The Tribunal in the 3rd round (Case No. 45ATA/1999) observing th e unjustified approach of the Disciplinary Authority was constrained to recommen d action against the Disciplinary Authority of the delinquent. 7. In the opinion of this court, the entire disciplinary proceeding has been vitiated through apathetic and careless approach of the Disciplinary A uthority who disregarded the orders of the Tribunal and the Appellate Authority. The approach adopted against the delinquent appears to be vindictive and there has been no objective consideration of the materials on record and guilty conclu sions have been recorded without any findings. The enquiry officers have failed to proceed in accordance with law by denying an opportunity to cross-examine the witness in the first round and the 2nd Enquiry Officer did not give any finding at all. Through such slovenly approach, the delinquent has been made to suffer a protracted disciplinary proceeding and its consequences for last 25 years. The huge delay in disposal of the proceeding has resulted in serious injustice as i t was the delinquent who was constrained to move the Appellate Authority and the Tribunal at three different stages for an expeditious conclusion of the Enquiry and the proceeding. The delinquent appears to be confident of proving his innoc ence whereas the Disciplinary Authority were uncertain and lacked integrity in i nquiring into the charges because of their close minded and unethical approach. Even after 25 years, the charges could not be proved and penalty is now ordered, without any acceptable finding. 8. In this case, the delinquent was acquitted in the year 1994 in t he Criminal Case initiated in the year 1985 on charges under Section 409 IPC. Tw elve years after the alleged misappropriation, a show cause notice was issued on 9.1.1996 and allegations against the delinquent is yet to be established throug h a legally sustainable procedure- 25 years after the incident. Meantime, the de linquent had to knock thrice on the doors of the Tribunal , for either expeditio us or legal conclusion of the enquiry and disciplinary proceedings. Two enquiry proceedings failed to establish the delinquent’s guilt. The approach of the Disc iplinary Authority during the least over 2 decades have not only been devoid of efficiency but also confrontational inasmuch as, the order of the Appellate Auth ority and the Tribunal have simply been disregarded. During the protracted proc ess, the delinquent had to fight a relentless and punishing battle to clear his name and at every stage, he had to prod the Disciplinary Authority to conclude t he enquiry or take the next action. It appears to be good example of abuse of po wer by the Superior Authority against a lonely LDA. 9. In view of the above discussions and conclusion, this petition d eserves to be allowed. Accordingly, the impugned penalty dated 21.9.04 (Annexure -P) is set aside and quashed. The respondents are directed to pay the arrear pay and allowances due to the petitioner for the period from 25.5.85 to 28.2.01 wit hin a period of 8 weeks from today. Respondents are further directed to ensure r elease of all the retirement benefits of the petitioner and to ensure payment of his regular pension on or before 5.10.2010. 10. For the severe injustice caused to the petitioner by the insensi tive and dilatory approach of the disciplinary authority (Respondent No. 2),a co st of Rs.10,000/- is ordered to be paid to the petitioner within a period of two months. 11. A copy of this order be furnished to Ms. B. Das, the learned Gov t. Advocate for communication and compliance.