SEKHAR KANTI SARKAR S/O SUNIL CHANDRA SARKAR Vs. STATE OF ASSAM AND 8 ORS
LAWS(GAU)-2018-8-10
HIGH COURT OF GAUHATI
Decided on August 03,2018

Sekhar Kanti Sarkar S/O Sunil Chandra Sarkar Appellant
VERSUS
State Of Assam And 8 Ors Respondents

JUDGEMENT

Manojit Bhuyan, J. - (1.) The appellant/writ petitioner Sekhar Kanti Sarkar was appointed as Sub-Inspector of Police (Wireless Technicians) [in short SI(WT)] in Assam Police Radio Organization (APRO) on 5.12.2001. As per the terms and conditions of appointment and to qualify himself as SI(WT), he was required to undergo, amongst other mandatory trainings, to successfully complete and pass the Grade-III and Grade-II Police Wireless Technician Trade Courses (PWT) of 9 and 6 months duration respectively. For the period from 2006 to 2013 the appellant was called on seven occasions to undergo the Grade-III PWT Training Course at the APRO Training School at Jalukbari, Guwahati. On one pretext or the other, the appellant kept himself way from undergoing the mandatory training course. This eventually prompted the respondent authority to issue show-cause-notice dated 15.5.2014, together with the Statement of Allegations. He was asked to explain as to why he should not be punished for his gross unbecoming conduct whereby he had exhibited insubordination and disobedience to the lawful order of the superior authority. The appellant made reply on 10.7.2014 and thereafter disciplinary proceeding was initiated by appointing Inquiry Officer. Despite being summoned on various dates, the appellant did not participate in the departmental proceedings, save and except, sending a letter on 10.6.2015 together with certain documents. The Inquiry Officer submitted report on 10.7.2015 holding that the charges against the appellant stood proved. On the basis of the Enquiry Report, the disciplinary authority issued notice dated 30.4.2016 by recording agreement with the findings of the Inquiry Officer and provisionally deciding to award the punishment of dismissal from service. On this, the appellant was asked to show-cause against the proposed action and in case any representation is made, the same be done within 10 days from the date of receipt of the notice. Along with the said notice dated 30.4.2016, a copy of the Enquiry Report was also enclosed. For the records, the said notice was received by the appellant on 13.5.2016. No representation was made except for a letter dated 22.5.2016 asking for 15 days' time to submit reply. On 30.5.2016, the appellant was dismissed from service with immediate effect. Aggrieved, the appellant instituted the related writ petition i.e. WP(C) 3561/2016.
(2.) Four grounds of challenge were urged before the learned Single Judge firstly, the finding of unauthorized absence by the Inquiry Officer was misconceived and not sustainable as there was no such charge drawn up against the appellant; secondly the disciplinary proceeding was drawn up prior to disposal of his representation where he had requested for relaxation and change/conversion from the trade/grade of Wireless Technician to the Operating trade; thirdly, in the absence of any mention made to the written statement of defence, the findings of the Inquiry Officer was wholly perverse and; fourthly, that there was clear violation of sub-rule (9) of Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964, whereby the disciplinary authority is required to consider the record of the inquiry and record its findings on each charge. The appellant had also urged that since a copy of the Enquiry Report was not given to him prior to issuance of the notice dated 30.4.2016 relating to proposed penalty and action, the same was a denial of reasonable opportunity of hearing before the disciplinary authority made up his mind to dismiss the appellant from service. Each of the grounds of challenge were answered having regard to the facts and the legal propositions so advanced and discussed. On the question of non-supply of the Enquiry Report prior to issuance of the second show-cause-notice, the learned Single Judge held that such action, ipso facto, cannot be held to be unlawful or void unless it could be shown that nonobservance thereof had prejudicially affected the person concerned. In the absence of any merit in the writ petition, the same was dismissed.
(3.) In the present appeal the issue raised for consideration is as to whether non-furnishing of a copy of the Enquiry Report before the disciplinary authority had accepted the finding of guilt recorded in the Enquiry Report dated 10.7.2015 constituted breach of natural justice and whether any prejudice had been caused to the appellant. On this, two facts emerging from the records are that in the show-cause-notice dated 30.4.2016 it is recorded that the report of the Inquiry Officer had been carefully examined and that the disciplinary authority agrees to the findings of the Inquiry Officer. While provisionally deciding to award the penalty of dismissal from service, the appellant was also asked to make representation, if any. Secondly, a copy of the Enquiry Report was also enclosed therewith, receipt of which is not disputed by the appellant. The agreement recorded in the said notice dated 30.4.2016 with the findings of the Inquiry Officer is now urged before us as an emphatic finding by the disciplinary authority with regard to the guilt of the appellant before any opportunity having been afforded to make representation against the findings of Inquiry Officer. This denial, according to the appellant, goes to the root of the matter, thereby, vitiating the order of punishment.;


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