WA 126/2007 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA THE HON’BLE MR. JUSTICE C.R. SARMA JUDGEMENT AND ORDER (ORAL) B.K. Sharma, J 1. This writ appeal is directed against the common judgment and order dated 14.11.2006 passed by the learned Single Judge in W.P.(C) No. 3932/2000 and W.P. (C) No. 6712/2001. While by the first writ petition, i.e. W.P.(C) No. 3932/2000, the writ petitioner had challenged the orders relating to his suspension, subsi stence allowance and the departmental proceeding initiated, by the second writ p etition, i.e. W.P.(C) No. 6712/2001, the petitioner had challenged the order of removal from service. Learned Single Judge has upheld the orders. Hence this wri t appeal. 2. The petitioner was a driver working under the respondent Corporation. By Annexure -A order dated 09.08.1999 he was placed under suspension pending drawl of departmental proceeding. Thereafter Annexure-B/1 charge sheet dated 16.11.19 99 was issued against the petitioner levelling as many as five charges. The said charges are quoted below: Charge No. 1: Disobey the signal of the checking officers: On 07.08.99 the Guwahati - Tezpur Super Service with the vehicle No. AS-20/0360 was driven by you. On way to Tezpur, the Divisional Superintendent, ASTC, Tezpur alongwith his two others staff gave signal to stop you vehicle No. AS-20/0360 n ear at Rowta Police Station for checking the service vehicle. But on seeking the signal you switch on the remaining two head lights and passed away with full sp eed without paying any response to the stop signal for misappropriation of ASTC revenue in collaboration with the conductor disobeying the signal of the Checkin g Officers. Charge No. 2: Insubordination and whimsical discharge of duties. On 07.08.99, while you were driven the Guwahati - Tezpur super service with the vehicle No. AS-20-0360 the Divisional Superintendent, ASTC, Tezpur alongwith his two other staff gave signal to stopped the vehicle near at Rowta Police Station for checking the service vehicle, but on seeing the signal you switch on the re maining two head lights passed away with full speed without paying any response to stop signal which caused insubordination to the superior and whimsical discha rge of duties. As such you are charged accordingly. Charge No. 3: Mis-appropriation of ASTC revenue in collaboration with the cond uctor The Guwahati-Tezpur super service Vehicle No. AS-20/0360 was signaled by the Div isional Superintendent, ASTC, Tezpur alongwith his two other staff near at Rowta Police Station to stop the vehicle for checking of the service vehicle which wa s driven by you on 07.08.99. But on seeing the signal you witch on the remaining two head lights and passed away with full speed paying no response to the signa l for misappropriation of ASTC revenue in collaboration with the conductor as it was seen the service was running almost with full speed passenger. As such you are charged accordingly. Charge No. 4: Violation of ASTC Rules and Procedure While you were driving the Guwahati-Tezpur super service vehicle No. AS-20/0360 on 07.08.99, the Divisional Superintendent, ASTC, Tezpur alongwith his two other staff gave signal at Rowta police station to stop the vehicle for checking the service vehicle. But you did not pay any response to the signal and passed away with full speed for misappropriation of ASTC revenue in collaboration with the c onductor. As such you are charged accordingly. Charge No. 5: Gross Misconduct As you were charged against charge No. 1, 2, 3 and 4 as stated above and in the statement of allegation, hence you are also charge for gross misconduct. 3. The petitioner by his Annexure-C written statement of defence dated 27.1 2.1999 denied the allegations. Upon such denial of the charges, the disciplinary authority instituted the domestic enquiry in which the charges levelled against the petitioner were found to have been established. The Divisional Superintende nt of Police, ASTC by his order dated 31.05.2000 imposed a penalty of stoppage o f two increments with cumulative effect. In the order it was further stated that the petitioner should be debarred from driving ASTC passenger vehicle for five years w.e.f. the date of joining on reinstatement. 4. Although the petitioner was reinstated in service, but it appears that h e did not join his service on reinstatement. Instead he insisted that he should be allowed to remain under suspension with payment of subsistence allowance as t he aforesaid writ petition being W.P.(C) No. 3932/2000 was pending in this Court . As noticed above, W.P.(C) No. 3932/2000 was filed by the petitioner challengin g the legality and validity of the entire departmental proceeding and also for r egularization of the entire period of suspension. 5. When the petitioner did not join his service, ASTC authority issued Anne xure-E order dated 02.03.2001 conveying the decision of stoppage of payment of s ubsistence allowance to the petitioner from the month of September, 2000. We see no reason as to why the said order was required to be passed inasmuch as the pe titioner was already reinstated in service pursuant to the departmental proceedi ng. As noticed above, the petitioner was imposed with penalty of stoppage of two increments with cumulative effect and the same was done by order dated 31.05.20 00. It was not the mere will of the petitioner to remain under suspension althou gh he was reinstated in service by the said order dated 31.05.2000. 6. When the petitioner did not join his duty upon reinstatement in service, the ASTC authority directed him to rejoin his duty which the petitioner defied. Situated thus, the ASTC authority passed Annexure-F order dated 13.08.2001 disp ensing with the services of the petitioner by way of removal from service. The s aid order dated 13.08.2001 is quoted below: OFFICE OF THE DIVISIONAL SUPERINTENDENT ASTC TEZPUR DIVISION OFFICE ORDER NO. 445/ Dated Tezpur the 13th August, 2001 Whereas Shri Basanta Kalita, Driver (under Suspension) is reinstated in his Original Post of Driver vide this Office Order No. 69 dated 31.05.2000 commu nicated under Memo No. ASTC/TEZ/DIS/P-99/2000/477-A dated 31.05.2000 and till ex piry of fifteen (15) month from the date of reinstatement he has neither resumed in his duties nor submitted any representation about his inability to join on h is reinstatement. Though several notices were served to him vide this office let ter No. ASTC/TEZ/DIS/P-99/2K/865 dated 28.08. No. ASTC/TEZ/DIS/P-992K dated 25.10.2k & No. ASTC/TEZ/DIS/P-99/2001/1710 dated 14.01.2001 respectively where he has been directed to report for his duties. But he has not joined in his duti es till date. As such, it is evident that he has intentionally not obeying the o rder of the competent authority which is quite detrimental to the interest of th e Corporation. On examination of the gravity of the case it is decided theat continuati on of service of Shri Basanta Kalita, Driver, ASTC, Tezpur is detrimental to the better interest of the Corporation. Hence Shri Basanta Kalita, Driver, ASTC is removed from ASTC service with immediate effect. Sd/- Divisional Superintendent i/c, ASTC, Tezpur 7. The petitioner assailed both the aforesaid orders in the writ petition, i.e. W.P.(C) No. 6712/2001. The learned Single Judge by his judgment and order d ated 14.11.2006 has disposed of both the writ petitions declining to interfere w ith the aforesaid penalties imposed on the petitioner. It appears that the learn ed Single Judge has been guided by the particular conduct on the part of the pet itioner and upon appreciating the facts and circumstances involved in the case p assed the impugned judgment. What has lost sight of the learned Single Judge is that the impugned order of removal from service was passed by the disciplinary authority without taking recourse to any departmental proceeding. What has also lost sight of the learned Single Judge is that in the enquiry conducted against the petitioner, the officer who had levelled charges against the petitioner also became the enquiry officer and eventually submitted report holding the petition er guilty of the five charges which were levelled by him. 8. Certain procedure towards conducting the departmental proceeding having been laid down which by now are well settled principles, the ASTC authority coul d not have deviated from the said principles in conducting the enquiry. The peti tioner having denied the charges, it was incumbent on the part of the disciplina ry authority to give him reasonable opportunity of being heard. It is on record that the authority which had levelled charges against the petitioner, on the bas is of the purported interception of the petitioner on road with purported sign al to stop the vehicle, itself conducted the enquiry and thereafter held the pet itioner guilty of the charges. Thereafter followed the impugned order of removal from service without holding any enquiry. If the petitioner was unauthorisedly absent from duty even after his reinstatement from service, it was open for the disciplinary authority to proceed against him by way of appropriate departmental proceeding. However, same was not done and the impugned order was passed removi ng the petitioner from service without providing him any opportunity of being he ard. 9. In view of the above, we are of the considered opinion that the impugned orders, i.e. order dated 31.05.2000 (Annexure-B), by which the petitioner was i mposed with the penalty of stoppage of two increments with cumulative effect and the order dated 13.08.2001 (Annexure-F) by which he was removed from service, a re not sustainable in law. Accordingly the said two orders are set aside and qua shed. Consequently, the impugned judgment and order dated 14.11.2006 passed in W .P.(C) No. 3932/2000 and W.P.(C) No. 6712/2001 also stands interfered with. This now leads us to the question as to whether the petitioner will be entitled to b ack wages. It is on record that although the petitioner was reinstated in servic e by the aforesaid order dated 31.05.2000, but the petitioner insisted that he s hould not be forced to join duty as his first writ petition being W.P.(C) No. 39 32/2000 was pending before this Court. It was the own voluntary act of the petit ioner that he did not join his duty even after reinstatement in service. He cont inuously remained absent which led to passing of the order of removal from servi ce on 13.08.2001. The petitioner being a driver and even otherwise also, he coul d not have defied the orders passed by the authority from time to time directing him to join the duty. 10. Apart from above, there is another aspect of the matter. The petitioner is a qualified driver and thus it can not be said that for all these years he ha s remained idle without doing anything. There is nothing on record to show that the petitioner was not engaged in any kind of employment during the long period. Accordingly we are of the considered opinion that the petitioner should not be rewarded with back wages. Accordingly we hold that the petitioner upon reinstate ment in service pursuant to setting aside and quashing the aforesaid impugned or ders, will not be entitled to any back wages. 11. Before parting with the case records, we make it clear that it will be o pen for the respondent authority to take further action in the matter as may be permissible in law and if the respondent is advised to do so. Further, it will be open for the ASTC authority to reinstate the petitioner and to place him in a ny station in the State. However, continuity of his service shall be maintained.