JATINDRA NATH DUTTA Vs. STATE OF ASSAM AND OTHERS

JUDGEMENT

(1.) This application under Art. 226 of the Constitution of India is directed against an order of dismissal of the petitioner, who was at the material time Head Assistant in the office of the Sub-Divisional Officer, Electrical Sub-Division, at Golaghat.

(2.) Certain charges were levelled against the petitioner in a departmental enquiry. Charges related to defalcation of money and neglect of duty and some other alleged misconduct. An enquiry officer was appointed to enquire into the matter. He was the officer on special duty, who was assigned the work of making enquiries in such departmental proceedings. He submitted a report to the Executive Engineer who on receipt of the same passed the impugned order. The impugned order may be quoted:

(3.) The short point that arises for consideration in this ease is whether the procedure adopted by the Executive Engineer has complied with that laid down in the extract of the Regulation 10 quoted above, viz., 'No order . . . concerned'. Mr. R. C. Choudhuri, the learned counsel for the petitioner, submits that the petitioner is entitled to a second show-cause notice under the aforesaid provision. We will, therefore, examine the provision carefully. It appears, thereunder, the employee (a) has to be informed in writing of the alleged misconduct, (b) is given an opportunity to explain the circumstances alleged against him, (c) before awarding a punishment the competent authority may make such further enquiries and give such hearing to the employee against whom misconduct is alleged, as may be considered necessary, and (a) shall take into account the gravity of the misconduct, the previous record, if any, of the employee, and any other extenuating or aggravating circumstances that may exist. Although it is not reproducing the provisions of Art. 311 (2) of the Constitution, it appears that this Regulation also requires the competent authority (to hear the employee against the proposed (punishment because the enquiry contemplated of the competent authority is prior to the passing of the order awarding a punishment. The first two parts of the provision may have relation to a type of enquiry which is prior to the consideration of punishment. The second part contemplates what is now commonly understood as an enquiry in answer to a second show-cause notice with which we are familiar when we deal with a case under Art. 311 (2) of the Constitution of India. This is particularly so because in this second enquiry the competent authority is required to take into account the gravity of the misconduct, the previous record, if any, and any other extenuating or aggravating circumstances. We are, therefore, clearly of opinion that the impugned order suffers from the defect in not giving the employee a reasonable opportunity to show cause against the punishment proposed against him. The impugned order only states that the officer concerned has received the report of the enquiring officer and his finding and has passed the order of termination of service. Although the word used is termination of service, it is clearly an order of dismissal for an offence described under Regulation 10 (b), which is theft, fraud, or dishonesty in connection with the business of the Board or its property. The order is, therefore, violative of the Regulation and must be set aside, which we hereby do in exercise of our powers under Art. 226 of the Constitution. It will be open to the competent authority to complete the departmental enquiry in accordance with the Regulations or the Rules in force from the stage after receipt of the report from the Officer on Special Duty. The employee may be given reasonable facilities as are available to him under the rules during the enquiry.