WP(C) 3311/2008 BEFORE HON’BLE MR. JUSTICE B. K.SHARMA JUDGMENT AND ORDER 1. Both the writ petitions being interconnected, have been heard together a nd are being disposed of by this common judgment and order. 2. The petitioner in W.P.(C) No. 3311/08 who is the respondent No. 5 in W.P .(C) No. 4466/08, is aggrieved by Annexure-6 order dated 31.05.08 by which penal ty of reduction in rank has been imposed on him pursuant to departmental proceed ing. However, later on the same very authority which had passed the earlier orde r dated 31.05.08, issued Annexure-D order dated 25.09.08 impugned in W.P.(C) No . 4466/08 by which the earlier order of penalty was modified by reinstating the petitioner in service as Headmaster of the school. The second order dated 25.09. 08 was passed pursuant to the judgment and order dated 27.01.06 passed by the le arned Chief Judicial Magistrate, Marigaon in GR Case No. 630/2001 in which the p etitioner was involved. For a ready reference, the aforesaid Anenxures-6 and D o rders dated 31.05.08 and 25.09.08 are quoted below: GOVERNMENT OF ASSAM OFFICE OF THE DIRECTOR OF ELEMENTARY EDUCATION, ASSAM KAHILIPARA, GUWAHATI-19 ORDER Whereas departmental proceedings was drawn as per rule against Md. Abdul Gani Ak anda, H.M. of Dewaguri ME Madrassa under the District Elementary Education Offic er, Morigoan and enquiry committee was constituted with the DI of schools, Morig aon as on enquiry officer. Whereas on enquiry of the DI of schools, Morigaon the charged teacher has been f ound to be guilty of 1) Wilful dereliction of duties by absenting himself from school except for 2-3 days in a month only being present for disbursement of salary without taking any class in the school. 2) The teacher charged with malafide intention appointing his nephew Md. Azizur Rahman Akanda in his school and fraudulently collecting false certificate and ma rk sheet on Higher Secondary Examination. 3) Wilful involvement in several irregularities, breach of trust and misleading the Department. Thus as per the conclusion of the enquiry report he incumbent has been found gui lty of committing offence as charged and thereby make himself liable for punishm ent as per Rule 7 of the Assam Civil Services (Discipline & Appeal) 1964. Now therefore the undersigned is convinced to decide the quantum of punishment t o be inflicted on the charted teacher commensurating to the quantum of offences which will meet the ends of justice. ORDER Therefore, the undersigned is pleased to order the re-instatement of Md. Abdul G ani Akanda, Headmaster, Dewaguri ME school under DEEO, Morigaon with the inflict ion of penalty by reduction of his service to an Assistant Teacher in the same s chool with immediate effect. This should be recorded in writing in his service b ook. Sd/- Director Elementary Education, Assam Kahilipara, Ghy-19 GOVERNMENT OF ASSAM OFFICE OF THE DIRECTOR OF ELEMENTARY EDUCATION, ASSAM KAHILIPARA, GUWAHATI-19 ORDER In pursuance of the order of Chief Judicial Magistrate, Morigaon dated 27.01.200 6 in GR No. 630/2001 Md. Abdul Goni Akanda who was re-instated in service vide m emo No. EMA (B) 28/06/28 dated 31.05.2008 is hereby modified that the petitioner . Md. Abdul Gani Akanda teacher of Dewaguri MEM under DEEO, Morigaon is hereby r e-instead in his original post as Headmaster at the said school with immediate e ffect. The period of suspension is hereby treated as on duty for all purposes. However, the teacher concerned is kept in under surveillance for his performance until further order. Sd/- Director Elementary Education, Assam Kahilipara, Ghy-19 3. I have heard Mr. R.P. Sarma, learned Sr. counsel assisted by Mr. B. Chok raborty, learned counsel for the petitioners in W.P.(C) No. 4466/08 as well as M r. B. Chakraborty, learned counsel representing for the petitioner in W.P.(C) N O. 3311/08. I have also heard Mr. Deka, learned Standing counsel, Education Depa rtment and have perused the records produced by him. 4. The petitioner in W.P.(C) No. 3311/08 was placed under suspension by An nexure I order dated 09.11.2001 and thereafter he was issued with show cause not ice dated 04.01.2003 (Annexure- 2) which is reproduced below: 1. That while you were H.M. of Dewaguri MEM you were involved in appointing one Md. Asisur Rahman Akanda your own nephew as an A/T of your school though the ca ndidate did not possess requisite qualification at the time of appointment. On t he other hand, you have produced false certificate in favour of the candidate to this office. Therefore you are charged with violation of rules. You have misled departmental authority. You are charged with showing undue favouritism to you o wn relative. 2) You have withdrawn a huge amount as arrear against 2 A/T of your school. Thou gh they did not rendered service. This is clear violation of financial rule. As responsible person you are liable for this. You are hereby charged with breach of trust. You are also charged with i ndifferent towards accountability and responsibility. 5. In due course the petitioner submitted his reply to the charges in which he denied the allegations made against him. Although in the writ petition, it i s the stand of the petitioner that there was no enquiry and that he was denied r easonable opportunity of being heard, Mr. R.P. Sarma, learned counsel for the ot her writ petition drawing my attention to Annexure-5 representation dated 25.08. 05 made by the petitioner, submits that only grievance of the petitioner at that point of time was purported non-furnishing of the copy of the enquiry report on ly. For a ready reference, the relevant portion of the said representation is qu oted below: After the suspension order I approached the authority several times requesting to reinstate me as the allegations are false. But to my utter sock and surprise the authority did not take any action in this regard. On 04.01.2003 the authority has served me a show cause notice stating so me allegations against me. Accordingly, I submitted its reply before the authori ty on 01.02.2003. After receiving my show cause reply the Deputy Inspector of sc hools, Morigaon has made an enquiry against me. During the time of enquiry, in s pite of my repeated request to handover some relevant documents and to inspect s ome other persons the enquiry officer has recorded my statements only. At that t ime, I requested the enquiry officer as well as other superior officers to provi de me assistance and to inspect the relevant documents so that I can prove the a llegations against me are false, vexatious, imaginary and concocted. But to my u tter surprise violating the provisions of service Rules the authorities have ref used my prayer and accordingly the enquiry has been completed. The enquiry report has been submitted on 19.07.2003 before the DEEO, Morigaon. But the authority has illegally, arbitrarily and with a clear malafide intention has not furnished a copy of the enquiry report as such the acts of the authorit ies have violate the provisions of Natural justice and the Rule of Law. 6. The charges against the petitioner as was revealed vide Annexure-2 show cause notice dated 04.01.2003 have already been quoted above. However, while imp osing the penalty by the impugned order dated 31.05.08, the charge No. 1 and 3 a s indicated in the said order were also brought for which there was no enquiry. The petitioner was also not charged on those two charges, but yet penalty of red uction in rank was passed taking into account the said two charges. It is true t hat the impugned order dated 31.05.08 finds mention of the two charges levelled against the petitioner at serial No. 2 of the impugned order, but what would hav e been the penalty had the other two charges, i.e. the charge No. 1 and 3, not t aken into consideration, is not discernible. 7. The aforesaid order dated 31.05.2006 was modified virtually cancelling t he said order by the impugned order dated 25.09.08 challenged in the other writ petition. The order has been quoted above. The Director of Elementary Education who had earlier issued the impugned order of penalty dated 31.05.2008, passed th e order dated 25.09.08 on the basis of the acquittal of the petitioner from the criminal charge in GR Case No. 630/2001. It is submitted that pertaining to the charge of submission of fake certificate and illegal drawl of money, the said cr iminal proceeding was initiated against the petitioner. 8. The earlier impugned order dated 31.05.08 was passed pursuant to the dep artmental proceeding, but the same was modified by the aforesaid order dated 25. 09.08 without referring to the departmental proceeding, but was passed in refere nce to the judgment and order dated 27.01.06 passed in GR Case No. 630/2001. The petitioner having been imposed with the penalty pursuant to departmental procee ding and in view of the fact that different parameters and yardsticks are applie d and/or applicable in the matter of departmental and criminal proceeding, the D irector of Elementary Education, Assam could not have cancelled the earlier orde r of penalty solely on the basis of the judgment of acquittal in the criminal ca se and that too, without referring to the earlier order of penalty based on a de partmental proceeding. 9. Mr. R.P. Sarma, learned counsel for the petitioners in W.P.(C) No. 4466/ 2008 has also submitted that the Director of Elementary Education being not vest ed with the power of review, could not have reviewed his own order by the said i mpugned order dated 25.09.08. In this connection, he has referred to Rule 27 of the Assam Civil Services (Discipline & Appeal) 1964, under which power of review lies with the appellate authority. In the instant case, the appellate authority is the Govt. in the appropriate department. 10. The records produced by Mr. Deka, learned Standing counsel, Education De partment have revealed that the petitioner is absent from duty unauthorisedly. A lthough he made time to time representations for the granting of leave, but it appears that the petitioner has acceded his admissible amount of leave. Irrespec tive of the order of reduction in rank he aught to have joined the post of Assis tant Teacher instead of waiting for the outcome of the present proceeding. It wi ll be pertinent to mention here that in the second writ petition, i.e. 4466/08, the order of review dated 25.09.08 passed by the Director of Elementary Educatio n, is under stay. 11. Mr. B. Chokraborty, learned counsel for the petitioner in W.P.(C) No. 33 11/08 has produced the copy of the judgment of acquittal dated 27.01.06 passed b y the learned Chief Judicial Magistrate, Morigaon in G.R. Case No. 630/2001 regi stered under Section 468/420/471/34 IPC. On perusal of the said judgment of acqu ittal, it is found that the acquittal is on account of the prosecution not being able to establish the charges beyond all reasonable doubt. It is in this contex t, Mr. Sarma, learned counsel for the petitioners in W.P.(C) no. 4466/08 has sub mitted that in case of acquittal on account of the charges not being established beyond all reasonable doubt, the authorities is empowered to take a decision no t to pay salary to the delinquent officer. However, this aspect of the matter ne ed not detain us as the same is not the issue in the present case. 12. It will be pertinent to mention here that against the said judgment of a cquittal the informant has preferred an appeal being Criminal Appeal No. 92/2006 . It is also submitted that the said appeal has been admitted for hearing. 13. Mr. B. Chokraborty, learned counsel for the petitioner in W.P.(C) No. 33 11/08 has raised the question of maintainability of the second writ petition whi ch has been filed by the some members/guardians of the school. A number of decis ions have been placed on the issue by both the learned counsel for the parties. Considering the issue involved, I am not inclined to reject W.P.(C) No. 4466/08 on the ground of non-maintainability of the same. In the instant case the petiti oner was imposed with the penalty of reduction in rank pursuant to a departmenta l proceeding, but the authority cancelled the same on the basis of the acquittal in the criminal case without even referring to the departmental proceeding. 14. In view of the fact that the petitioner has not resumed his duty for a c onsiderable period of time, in my considered opinion he is not entitled to arrea r salary for the period he remained absent from duty. As noted above, irrespecti ve of the order of penalty he ought to have joined the post of Assistant Teacher in stead of waiting for the outcome of this proceeding. 15. Mr. Chokraborty, learned counsel for the petitioner in W.P.(C) No. 3311/ 08 submits that the petitioner being the Headmaster of the school, could not hav e been reverted to a lower post of Assistant Teacher. Mr. Sarmah, learned counse l for the petitioners in the other writ petition submits that the petitioner’s a ppointment as founder Headmaster at the venture stage of the school does not hav e any bearing on the reversion of the petitioner to the lower post of Assistant Teacher. He submits that since the school was provincialsed later on and the pet itioner was appointed as Assistant Teacher at the time of provincialisation of t he school, the impugned order of reduction in rank cannot be faulted with on th at ground. The materials placed in this regard are scanty and thus, no opinion i s expressed in this regard. 16. As noted above, the first impugned order dated 31.05.08 was passed by th e Director of Elementary Education, Assam by taking into account two extraneous charges which did not find mention in the charge sheet. However, the order finds mention the two charges levelled against the petitioner in the charge sheet. 17. In view of the above, the Director of Elementary Education, Assam could not have issued the second impugned order dated 25.09.08 solely on the basis of the judgment of acquittal in the criminal case without referring to the departm ental proceeding. The earlier impugned order dated 31.05.08 having been passed o n the basis of the departmental proceeding, the said order could not have been s et at naught on the basis of the acquittal in a criminal case. As already observ ed above, the principles involved in a departmental proceeding and in a criminal proceeding are quite distinct and different. Whereas it is the preponderance o f probability in a departmental proceeding, it is the establishment of charges b eyond all reasonable doubt in a criminal proceeding. This is precisely the reaso n as to why there is no absolute bar in proceeding with departmental proceeding independent of criminal proceeding. 18. For all the aforesaid reasons, I am of the considered opinion that the m atter needs fresh consideration by the disciplinary authority, i.e. the Director of Elementary Education, Assam who has passed both the impugned orders dated 31 .05.08 and 25.09.08 taking into account all the relevant aspects of the matter a nd consistently with the observations made above. The said authority shall pass a reasoned order as expeditiously as possible, but at any rate, not later than 3 1.01.2011. Depending upon the outcome of the order now to be passed by the Direc tor, the future service condition of the petitioner will follow. It will be open for the parties to make representations to the said authority, if so advised. A s regards the salary etc., same will be subject to the outcome of the exercise t o be carried out by the said Director.