WP(C) 2429/2009 BEFORE THE HON’BLE MR. JUSTICE T VAIPHEI In this writ petition, the petitioner is challenging the legality of the departmental proceeding against him and the consequential resolution dated 10-7 -2008 adopted by the Governing Body of Hojai College dismissing him from service . 2. The factual background of the case, as pleaded by the petitioner, may fi rst be noticed. The petitioner was duly appointed as Principal of Hojai College on 7-3-2001. In the year 2006, while discharging the functions of the Principal of the College, some of the lecturers of the College published some news item ag ainst him whereupon the Sub-Divisional Officer (Hojai) deputed some persons to t he College to make enquiry into the subject of the news item, and asked him to s ubmit the entire documents concerning the affairs of the College. This led him t o file WP(C) No. 3884 of 2006 before this Court, which by the order dated 14-8-2 006 disposed of the writ petition by directing the district authorities not to p roceed with the enquiry without the approval from the Director of Higher Educati on, Assam (respondent 2). In the month of October, 2006, he had to go on leave w .e.f. 7-10-2006 to 24-10-2006 for treatment at Chennai, and the Vice-Principal o f the College was allowed to hold the charge of the Principal during this period . During that period, a group of faculty members of the College made some allega tions against him before the President, Governing Body of the College. On 11-10- 2006, the President directed the Vice-Principal to call an emergent meeting of t he Governing Body on 15-10-2006 with the agenda Ultimatum letter issued from H. C.T.A (Hojai College Teachers’ Association) .The meeting was held under the Chai rmanship of the President of the Governing Body in which nine members of the Gov erning Body along with two special invitees also attended the meeting. One of th e special invitees, namely, Prof. D. Goswamy, brought certain allegations agains t him on some illegal appointments made by him both in the teaching and non-teac hing staff as well as some corrupt practices committed by him. On the basis of t hese allegations, the Governing Body, behind his back, constituted two Enquiry C ommittees to conduct enquiry against him. Another resolution was also passed in that meeting curtailing his financial powers by transferring the same to the Vic e-Principal. Aggrieved by this, he filed a representation to the respondent No. 2 contending that the meeting of the Governing Body and the constitution of the Enquiry Committees were without jurisdiction, but no action was taken by the res pondent 2. 3. It is the further case of the petitioner that on 26-11-2006, a meeting o f the Governing Body was held wherein as many as 18 resolutions were adopted, on e which is Resolution 12 which resolved to appoint the Vice-Principal of the Col lege as Secretary of the College while the College fund was to be operated joint ly with the treasurer: Prof. K. Sarmah (senior-most Lecturer of the College) was to be appointed as the Treasurer of the College. The respondent No. 2 by his or der dated 29-11-2006 approved Resolution No. 12. This prompted him to file anoth er writ petition i.e., WP(C) No. 6175 of 2006 before this Court and the same is still pending for disposal. On 29-1-2007, the Governing Body adopted another res olution requesting respondent 2 to take disciplinary action against him. Subsequ ently, other resolutions were passed by the Governing Body requesting respondent 2 to hold enquiry against him and pending initiation of the disciplinary procee dings, to place him under suspension. This led him to file WP (C) No. 1363 of 20 07 before this Court, and the same is still pending for disposal. On 8-11-2007, a meeting of the Governing Body by a resolution requested the Deputy Commissione r, Nagaon to make arrangement for appointing an Enquiry Officer, who should not be below the rank of 1st Class Executive Magistrate for departmental enquiry aga inst the petitioner and decided to issue show cause notice to him mentioning the rein the charges against him. The respondent No. 4 accordingly issued the show c ause notice dated 13-12-2007 to him comprising of 24 charges against him and req uired him to reply to the show cause notice. On receipt of the show cause notice , he by his letter dated 14-12-2007 requested respondent 4 to furnish a copy of resolution of the Governing Body held on 8-11-2007 for enabling him to reply to the show cause. A copy of the resolution was furnished to him by respondent 4 on 19-12-2007. On receipt of the resolution, he again wrote back on 20-12-2007 inf orming respondent 4 that no specific charges were framed by the Governing Body. Respondent 4 was also asked by him to clarify the sources upon which charges men tioned in the show cause had been obtained and whether they were based on writte n complaints and, if so, supply him a copy of the same. However, no clarificatio n was forthcoming. 4. The petitioner goes on to aver that he thereafter requested respondent 4 to grant him some more time on the ground of ill-health so that he could his re ply, but he was not obliged by respondent 4 claiming that he had no power to do so. He then by his letter dated 7-2-2008 approached the Commissioner, Education (Higher) Department, Government of Assam to intervene on his behalf, but in vain . After sometime, he received the letter dated 18-2-2008 from respondent 4 from which he came to learn that Ms. Uma Bhowmick, a retired Principal of Lumding Col lege, had been appointed as the Enquiry Officer to conduct the disciplinary proc eeding against him. The Enquiry Officer thereafter issued the notice dated 1-2-2 008 inviting complaints in writing from the general public pertaining to Hojai C ollege within 15-2-2008. On the basis of this notice, the Enquiry Officer receiv ed six set of allegations against the petitioner whereafter she issued the lette r dated 20-2-2008 to him requiring him to reply in writing to each of the allega tions separately on or before 29-2-2008. Aggrieved by this strange action, the p etitioner filed W.P.(C) No. 717 of 2008 before this Court, which by the interim order dated 27-2-2008 had directed the respondents not to insist him to submit h is reply to the charges till the next returnable date. The writ petition was sub sequently withdrawn by him with a liberty to file a fresh case. In the meantime, the Enquiry Officer informed the petitioner by her letter dated 12-3-2008 about the withdrawal of the show cause notice dated 20-2-2008. The Enquiry Officer th en vide her letter dated 2-4-2008 informed him about the articles of charges dra wn against him in the show cause notice dated 13-12-2007 and directed him to app ear before her on 10-4-2008 to cooperate with the enquiry proceedings. The petit ioner, however, replied that he would not be able to attend the enquiry as he wo uld be leaving for Guwahati in connection with WP( C ) No. 5660 of 2007 filed by him. The Enquiry Officer then directed him to appear on 22-4-2008, failing whic h she would take an ex-parte decision. The petitioner then informed the Enquiry Officer that as he would be going to Guwahati on 22-4-2008 to file an appeal aga inst the judgment passed by this Court, he would not be able to appear before he r. 5. It is further stated by the petitioner that he did not hear from the Enq uiry Officer for sometime, but on 24-6-2008, he received the 2nd show cause from her informing him of the completion of the enquiry and of the forwarding of the copy of the enquiry report to him. He was also informed therein that the Govern ing Body had provisionally decided to dismiss him from service and asked him to make a representation within seven days of the receipt of the show cause. On rec eipt of the show cause, the petitioner informed the respondent No. 4 about the f iling of the writ appeal by him against the judgment of this Court in W.P.(C) No . 5660 of 2007. It is the case of the petitioner that Hojai College is a provinc ialised college and is governed by the provisions of the Assam College Employees (Provincialisation) Act, 2005 ( the Act for short) and the Assam Services (Dis cipline and Appeal) Rules, 1964 ( the Rules ). It is contended by the petitioner that the provisions of the Rules are not followed by the disciplinary authority by not framing definite articles of charges against him together with a stateme nt of allegations on which they are based; no charge was framed by the Governing Body, which was the competent authority; the respondent No. 4, who himself brou ght the allegations made against the petitioner, initiated the enquiry by issuin g the show cause; the charges are defective and vague in that they were only sta tement of conclusions devoid of material particulars, which vitiates the enquiry ; no list of documents or names of witnesses were furnished to him in violation of Rule 9. On 27-6-2008, he submitted an application for furnishing him the minu tes of the Governing Body held on 15-6-2008 and 22-6-2008, but to no avail. On t he intervention of the Inspector of Colleges, the respondent No. 4 ultimately fu rnished this information to him on 19-8-2008, that too, after the Governing Body had taken the decision to dismiss him from service. Thus, according to the peti tioner, he was never given a reasonable opportunity of hearing as required under the provisions of Rules, which alone is sufficient to quash the impugned dismis sal order. It is also the case of the petitioner that the resolution to dismiss the petitioner’s service was sent by the respondent No. 4 to the respondent No. 2 for his approval. Though the respondent No. 2 was required to apply his mind p roperly to the resolution and not to act mechanically, he did so, which is illeg al and arbitrary. This Court by the order dated 26-11-2008 in WP(C) No. 4930 of 2008 had directed the petitioner to wait for the decision of the respondent No. 2 on the approval sought by the Governing Body of Hojai College in this behalf a nd then sought the remedy of appeal if not satisfied with the decision of the re spondent No. 2 and might even approach this Court if still aggrieved. Thereafter , the respondent No. 2 by his order dated 11-12-2008 informed the respondent No. 4 that the proceeding drawn against the petitioner was not in conformity with t he provisions of the Rules. Surprisingly, the respondent No. 2 issued the order dated 15-6-2009, without referring to his earlier observation dated 11-12-2008, approving the resolution of the Governing Body dismissing the petitioner from se rvice. This, contends the petitioner, is improper, illegal and arbitrary warrant ing the interference of this Court. This is how the writ petition has been filed . 6. The writ petition is contested by both the State-respondents and the Gov erning Body of the College. However, no affidavit-in-opposition is filed by the State-respondents. In the affidavit-in-opposition of the respondent No. 3 and 4, numerous facts are pleaded by the answering respondents, most of which are not really necessary for determination of this writ petition, which is principally d irected against the legality of the proceedings of the departmental enquiry agai nst the petitioner and of the validity of the approval accorded by the responden t No. 2 to the decision to dismiss him from service and, as such, only so much o f the pleadings as may be necessary for effective adjudication of controversy ar e reproduced herein for the sake of brevity. It is the case of the answering res pondents that on receipt of the show cause notice, the petitioner on 14-12-2007 requested them to furnish a copy of the G.B. resolution No. 2(b) dated 8-11-2007 for the purpose of preparation of his reply and the same was supplied to him. H owever, the petitioner in his letter dated 20-12-2007 requested respondent 4 to clarify the sources of the charges mentioned in the show cause notice. The Secre tary of the Governing Body by his letter dated 12-1-2008 supplied the documents on the basis of which charges were framed against him and requested him to reply the show cause notice on or before 21-1-2008, but the petitioner by his letter dated 18-1-2008 requested for another one week’s time, which was granted. The re spondent No. 4 by his letter dated 28-1-2008 informed the petitioner that granti ng further time thereafter was beyond his power as a decision had been taken by the Governing Body, which was received by him on 29-1-2008. The petitioner took one plea after another to avoid the enquiry, which ultimately resulted in ex-par te proceedings and the final order. According to the answering respondent, the 2 nd show cause notice was given to him along with the enquiry report to afford hi m a chance to make representation against the findings thereof. He merely replie d that he had already filed an appeal against the judgment passed in WP(C) No. 5 660 of 2007 and, as such, the question of giving an opportunity of hearing to hi m did not arise thereafter. It is asserted by the answering respondent that the procedure laid down by the Rules have been followed in the enquiry: charges were framed and approved by the Governing Body of the College, which at no point of time delegated its functions to any subordinate authority. As the respondent No. 4 is the Secretary of the Governing Body, there was nothing wrong in his initiat ing the departmental enquiry against the petitioner. The list of documents was s upplied to the petitioner on 12-1-2008. The answering respondent denies that the show cause notice was issued improperly or whimsically or arbitrarily and that any permission was ever sought by him to inspect the official records to which h e was entitled under the law and, as such, the question of inspection of documen ts by him did not arise. It is stated by the answering respondent that a letter was issued to them by the respondent No. 2 on 11-12-2008 requiring them to clari fy the position as to how the proceedings were drawn, which was duly clarified b y Governing Body on 7-2-2009. It was only carefully considering all the records of the departmental enquiry that the respondent No. 2 approved the resolution fo r dismissal of the petitioner from service: there is thus no infirmity in accord ing such approval. In terms of the observations of this Court in the said order dated 26-11-2008, the petitioner before approaching this Court has not exhausted the alternative remedy of appeal, which, ipso facto, entails the dismissal of h is writ petition. It is thus contended by the answering respondent that while di smissing the petitioner from service, principles of natural justice incorporated in the Rules have been scrupulously observed, and the writ petition has no meri ts and is liable to be dismissed. 7. After hearing Mr. Y.S. Manan, the learned counsel for the petitioner, Mr . G. Uzir, the learned counsel for the State-respondents and Mr. U.K. Goswami, t he learned standing counsel for the Education Department, I am of the view that there is no infirmity in the proceedings of the departmental enquiry culminating in the resolution of the Governing Body of the Hojai College to dismiss the pet itioner from service. The admitted positions of the parties are that the petitio ner was informed by the letter dated 2-4-2008 about the articles of charges draw n against him on 13-12-2007 and to appear before her on 10-4-2008 at 1 P.M., but he did not do so and, instead, informed the Enquiry Officer by his letter dated 9-4-2008 that he could not be present in the enquiry as he would leave to Guwa hati in connection with W.P.(C) No. 5660/2007 filed by him . The Enquiry Officer duly obliged him by directing him to appear personally on 22-4-2008 as otherwis e an ex-parte decision would be taken. He did not appear even on that day on the ground that he had to go Guwahati on 22-4-2008 to file writ appeal against the judgment dated 5-3-2008 passed in W.P.(C) No. 5660/2007. These facts were pleade d by the petitioner himself at paragraph 14, 15, 16 and 17 of the writ petition. Naturally, the Enquiry Officer was left with no alternative but to proceed with the enquiry against him ex-parte: the enquiry officer could not be expected to conduct the enquiry at the convenience of the petitioner. Moreover, in the intro duction of the enquiry report, the Enquiry Officer observed: Taking said ground the suspended Principal avoid the proceeding on that par ticular date i.e. 22/04/2008 and he was absent. However, as an Enquiry Officer, I over telephone investigated the matter whether there is any appeal has been pr eferred against the above referred Judgment on 21-04-2008 before the Hon’ble Guw ahati High Court. I was informed by the advocate concern, who is usually appeari ng for and on behalf of the Hojai College, namely, Sri S.K. Medhi, Advocate, tha t no such appeal has been preferred or filed on 21/04/2008 before the Hon’ble Gu wahati High Court. Having been such position of intentional absence of Sri Bhattacharjee, I de cided to proceed ex-parte and allowed the Presenting Officer Sri Kumudeswar Shar mah, Secretary & Principal-in-Charge of the Hojai College (herein called as Pres enting Officer) to present the case in support of the charges framed in the show cause notice dated 13-12-2007. Accordingly, the Presenting Officer presents his case on 22/4/2008, 23/4/2008, 25/4/08, 26/4/08, 27/4/08, 28/4/08, 29/4/08, 29/4 /08, 30/4/08, 05/5/08, 06/5/08, 02/6/08, 03/6/08, 04/6/08, 05/6/08, 07/6/08 and exhibited necessary supporting documents/records in connection with the charges against Sri Bhattacharjee. 8. Though a copy of the enquiry report was furnished to the petitioner by t he disciplinary authority without delay, as admitted by him in paragraph 28 of t he writ petition, he did not make a representation against the findings recorded by the Enquiry Officer. His grievance is that he was not even notified about th e next date fixed for his appearance. In my opinion, this is a tall order. There is a limit to observance of principles of natural justice in a departmental enq uiry. As observed by the Constitution Bench of the Apex Court in Managing Direct or, ECIL v. Karunakar, (1993) 4 SCC 727, the theory of reasonable opportunity an d the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantat ion to be invoked or rites to be performed on all and sundry occasions. In the i nstant case, the petitioner, even after he received the articles of charges, had never asked for copies of the documents and a list of witnesses being relied up on by the disciplinary authority to sustain the charges against him: all that he did was to seek adjournment after adjournment on grounds which were found to be false as recorded by the Enquiry Officer. In my opinion, this is not a case of not denying an opportunity to the petitioner but is a case of not availing of th e opportunity offered to him by the Enquiry Officer. One fact which looms large, undoubtedly, is that in spite of service of show cause notice, the petitioner f ailed to appear at the enquiry and the enquiry officer had to proceed with the e nquiry in his absence. He never demanded supply of any document or the list of w itnesses proposed to be relied on by the disciplinary authority to bring home th e charges against him. All that he said is that he could not attend the enquiry proceedings on 10-4-2008 on the ground that he would be going to Guwahati in con nection with WP(C) No. 5660 of 2007 filed by him and that he could not appear be fore the Enquiry Officer on 22-4-2008 as he would be going to Guwahati to file w rit appeal against the judgment dated 5-3-3008 passed in WP(C) No. 5660/2007. In my opinion, the grounds mentioned by him for his non-appearance before the Enqu iry Officer on 10-4-2008 and 22-4-2008 are totally untenable. On the contrary, t here is reasonable ground for coming to the conclusion that he was deliberately evading the enquiry proceeding for no apparent reason or for stalling the procee dings. Therefore, the Enquiry Officer did not act arbitrarily or improperly in p roceeding with the enquiry ex parte: it is also a case of no prejudice. Conseque ntly, there is no procedural impropriety on the part of the Enquiry Officer in p roceeding with the case ex parte. The decision of this Court in Uma Prasad v. St ate of Assam reported in (1996) 3 GLR 105 upon which reliance is placed by Mr. Y .S. Mannan, the learned counsel for the petitioner, has been duly noted by me. T here can be quarrel with the proposition of law laid down therein that the proce dure prescribed under Rule 9 of the Rules is for the safeguard of a government s ervant against any arbitrary and whimsical decision and that the procedure is ma ndatory and non-compliance with any of the provisions of the rule vitiates the d epartmental proceeding. However, as already found by me, this provision, on the proved facts and circumstances, has been substantially complied with by the Enqu iry Officer before she decided to proceed against the petitioner ex-parte. 9. In PEPSU RTC v. Rawel Singh, (2008) 4 SCC 42, a case of somewhat similar nature came up for consideration before the Apex Court. In that case, the respo ndent was serving as a driver with the appellant-Corporation. On 8-9-1988, the r espondent sent a leave application from his home town seeking leave up to 30-9-1 988 on medical grounds. On expiry of the leave period, however, he did not join duties. A report was submitted by the Depot Manager to the Corporation and a not ice was issued to the workman on 5-12-1988 seeking his explanation as to absence from duty. He was also asked to report within ten days. Though the said notice was also duly served, the respondent failed to join duty. A charge sheet was, th erefore, issued against him where three allegations were levelled against him, ( i) knowingly and intentionally remaining absent without sanction of leave and wi thout sending leave application, (ii) failure to take interest in work, and (iii ) disobedience of Rules of the Corporation. A reply was filed by the respondent denying allegations levelled against him and praying for withdrawal of notice. T he Corporation was not satisfied with the explanation. An enquiry was thereupon instituted against the respondent. Though the respondent was fully aware and had the knowledge of the date of hearing, he failed to appear before the enquiry of ficer and the enquiry was held ex-parte. On the basis of evidence led by the man agement, a finding was recorded by the enquiry officer that the charges levelled against the respondent were proved. After the receipt of the enquiry officer’s report, again show cause notice was issued to the respondent on 20-6-1989 and he was asked to submit his representation within fifteen days. He was also asked t o remain present, if he wanted personal hearing, but the respondent failed to re main present. Considering the reply submitted by the respondent, the disciplinar y authority passed an