BHARAT CHANDRA MISHRA BHAGABATI Vs. STATE OF ASSAM

JUDGEMENT

(1.) 1. The petitioner was appointed as Principal of a College at Bokakhat and continued as such from 1964 to 1967. In 1967 the petitioner was appointed as the Vice-Principal of Fazal All College at Mukokchang, that is a Government College. On 5.1.71 ihe petitioner joined Choiduar College as Principal and continued as such till he was suspended by the College Authority, The suspension was on the ground of misappropriation of College fund on different counts.

(2.) On 6.9,83 the D.P.I., Assam issued an order to allow the petitioner to join the College by, setting aside the order of suspension. However, the Governing Body of the College did not allow the petitioner to join the post. On 8.11.83 ultimately the order of suspension was approved by Respondent No. 2. After putting the petitioner under suspension the College Authority did not submit charge sheet for more than 3 years. On 14.5.85 the term of the earlier Governing Body expired and a new Governing Body was constituted. But inspite of that a meeting of the old Governing Body was convened by Ex-Secretary and a resolution was passed holding the petitioner responsible [for alleged misappropriation of College fund and also filed an Ejahar before the Gahpur Police Station. On ; 1.8.85 the D.P.I. Assam wrote a letter to Secretary to the Governing Body declaring the resolution dated 25.6.85 adopted by the old Governing Body not effective and operative in law. It was further mentioned in this letter that holding the petitioner guilty of alleged defalcation was not proper w thout holding an enquiry. This is Annexiure-1 to the Writ Application. There after on 7.8.86 the petitioner was served with a charge sheet without enclosing the list of documents. The petitioner submitted his reply denying the charges brought against him. On 28.11.87 me petitioner was served with a let:er of the Governing Body enclosing therewith an enquiry report where in the petitioner was found guilty of four charges out of nine framed againsl him. The enquiry was held ex-parte behind the back of the petitioner. On 4.12.87 the petitioner submitted his reply: to the said show cause notice dated 28.11.87 stating, inter-alia, that the petitioner was not served with any notice of alleged enquiry and therefore, )he enquiry was vitiated. On 6.2.88 the Governing Body adopted a resolution removing the petitioner from service with immediate effect. Being aggrieved by the said decision of the Governing Body the petitioner submitted appeal/representation before the authority. But that was rejected. The petitioner fliled Civil Rule No. 707/88 before this Court. A single Judge of this Count allowed the Writ Application by order dated 29.9.93 quashing the impugned order and resolution of the Governing Body removing him from service and further directed that the petitioner would be deemed to be in service [for all purposes. Against that judgrrent a Writ Appeal being Writ Appeal No. 218/93 was filed before this Court. The Appellate Court partially set-aside the order of the Single Judge and directed that it will be open for the authority to hold a fresh enquiry. But there was a direction to appoint another enquiry officer and the authority was albwed to continue with the enquiry afresh on the same charges and it was further directed that the enquiry officer would proceed with the enquiry by giving opportunity to the petitioner to file additional Written Statement, if any, and to inspect all documents with a further direction to complete the enquiry within 2 months from 23.5.94. On 2.6.94 the Governing Body issued a charge sheet along with statement of allegations and list of documents and witnesses to the petitioner. The petitioner appeared before the Governing Body on two different dates as fixed by it for inspection of documents. But not a single document was made available and as a result the petitioner could not file Additional Written Statement. Since the Governing Body could not complete the enquiry within the time fixed by the Appellate Court, the petitioner filed the Review Application being Misc. Case No. 1097/94 for ordering reinstatement of the petitioner and payment of subsistence allowance. The Governing Body later on filed a Misc. Case No. 1145/94 before this Court praying for extension of time for completion of the enquiry. On 23.9.94 both these Misc. Cases were heard by the Appellate Court and this Court was pleased to direct that the: records sought to be inspected by the petitioner would be made available toy the Governing Body on 29.9.94 in the office of the S.D.O. (Civil), Biswamth Charali with a further direction that if some records could not be made available for inspection, the President of the Governing Body would record (he reasons as to why the same could not be made available for inspection, By the said order the petitioner was directed to file show cause on 5.10.94 and the Disciplinary Authority was directed to initiate the proceeding. On 29.9.94 the petitioner appeared before the Sub-Divisional Officer and submitted a letter requesting the Governing Body to make available the documents mentioned therein for inspection. However, most of the documents mentioned in that letter could not be produced by the Governing Body (for inspection and inspection was made of some documents which are not relevant with the allegations. No reasons recorded by the Respondent No. 3 as to why the documents could not be made available for inspection as directed by the Appellate Court. These are Annexures -VI & VII to the Writ Application. On 5.10.94 the Governing Body by a letter informed the petitioner about the decision to hold the enquiry and directed the petitioner to attend the enquiry at the place and time fixed by the Enquiry Officer. On 8.10.94 the Enquiry Officer informed that enquiry would be held on 20.10 94 and 21.10.94. This is Annexure-X to the Writ Application. The enquiry was held on these two different dates in presence of the petitioner and two observers. Shri Padmeswar Bhuyan was appointed as the Presenting Officer and Shri Keshab Hazarika, a member of the Governing Body as observer. On 27.10.94 the Enquiry Officer submitted report to Disciplinary Authority holding the petitioner guilty of charges except Change Nos. 3 and 4. The Governing Body accepted the report and the second show cause was issaied informing the petitioner of the proposed punishment of dismissal from service. On 2.11.94 the petitioner submitted a telegraphic reply as the time at his disposal was short. He pointed out various irregularities, omissions and commissions in the enquiry. On 4.11.94 by order of the Respondent No. 3 (the petitioner was dismissed from service with immediate effect. It was further stated in the order that the time of suspension would be considered as toe period not spent on duty and ihe petitioner would not be entitled to any amount other than what has been paid as subsistance allowance. This is Anraexure-XIII to the Writ Application.

(3.) It may be stated herein that this order of dismissal requires Ihe approval of the D.P.I, and it has beeni approved by the D.P.I. On 22.11.94. an Affidavit-in-opposition has been filed on behalf of the Respondent Nos. 3 and 5 wherein the allegations made in the'Writ Application are denied and it is stated that the enquiry was conducted properly. An affidavit-in-reply t as been filed on behalf of the petitioner against the affidavit-in-opposition.