DIBAKAR NANDI Vs. KHARUPETIA TOWN COMMITTEE

JUDGEMENT

(1.) The legality and validity of the order dated 1.8.94 passed by the Respondent No. 2, the Chairman Kharupetia Town Committee, Kharupetia dismissing the Petitioner from service is assailed in this Writ petition as being violative of the principle of natural justice. Prior to me passing of the impugned order the Petitioner had been working as a Tax Collector under the Kharupetia Town Committee since 1988. By an order dated 13.5.1988. Petitioner was appointed as Tax collector on commission basis for collection of Municipal Tax. Subsequently, however, the said order was modified and the Board took resolution for paying him a lumpsum salary of Rs.300/- per month in place of commission. According to the Petitioner the authority was impressed upon his service and therefore in addition to his work as Tax Collection, Petitioner was ordered to assist the Town Committee in the Clerical works. By the communication dated 17.1.94 Petitioner was asked to explain the cause of delay in depositing the amount collected against forms of beneficiary of 105 Low Cost Sanitary programme works of Kharupetia Town Committee immediately on or before 21st January, 1994. Petitioner by his show cause reply dated 21.1.94 explained and submitted mat the heavy work load was the main reason of delay in depositing the amount collected against the form of beneficiary of low cost sanitary programme. However, vide order dated 24.1.94, Chairmen Town Committee suspended the petitioner from service stating that the causes shown by the petitioner was unacceptable and directed the petitioner to show cause within three days and initiated a disciplinary proceeding against the Petitioner and issued chargsheet. Petitioner by application dated 16.7.94 informed the authority that because of ailment that he was suffering at the relevant time. it would not be possible on his part to submit his written statement within the time specified and prayer to the Respondent No. 2 to allow him 20 days time to inspect the document within the time to inspect the documents and lake copies 20F the same so as to enable him to enable him to submit the written statement. Along with the application Petitioner enclosed a medical certificate issued by the Senior Medical & Health Officer, Kharupetia C.H.C.. The Chairman, Kharupetia Town Committee by his letter dated 19,7.94 intimated the Petitioner about the decision of the Board for granting 10 days time for submission of his written statement and also directed the Petitioner to appear before the Board in the meeting schedule to be held on 29.7.94 at 10 A.M. The petitioner on receipt of the said letter addressed the chairman intimated about his illness and accordingly prayed further time for inspecting the documents and submit his written statement. The aforesaid application of the Petitioner Praying for time dated 25.7.94 was unattended and instead of that the Chairman, Municipal Town Committee intimated the Petitioner about the order of dismissal passed by the Board which was intimated to him vide Annexure - P to the Writ Petitioner. The full text of which are cited below : "..OFFICE OF THE KHARUPETIA TOWN COMMITTEE : KHARUPETIA : No.KTG/10-94-95/406/ Dated Kharupetia the 1.8.94 To, Shri Dibakar Nandi, Tax Collector, 'Under suspension), Kharupetia Town Committee. Kharupetia, Darrang, Assam Whereas the Inquiry Officer, in the disciplinary proceeding against you, found you guilty of the charges levelled a against you charge sheet No. KTG/10/94-95/288 dated 8.7.94 and you did not reply to me said charges even after sufficient opportunities afforded to you. AND whereas the Board unanimously concurred the findings of the Inquiry Officer, Shri Jhunu Mazumder that your retention in service is considered not desirable. You are, therefore, dismissed from the service with effect from the data when you were placed under suspension. You would be paid your dues as admissible which you may collect from the Accounts Department on any working day during office hours. Sd/- 1.8.94 Chairman., Kharupetia Town Committee, Kharupetia The Writ Petitioner by this Petitioner has challenged the impugned order on ground of violation of the principle of natural justice and other various grounds.

(2.) An affidavit has been filed on behalf of Respondent Nos. 1-3 denying and disputing the assertion made by the Petitioner. According to the chairman on taking charge in the office of the Town Committee he found an amount of Rs, 4,500/- was collected by the Petitioner upto 20.12.93 agaisl the beneficiaries application forms under low cost sanitation Scheme and out of which a sum of Rs. 1,580/- was deposited on 21.12.93 leaving a balance of Rs. 3,010/- in the hand of the Petitioner up to 9.11.94. The balance amount of Rs. 3,010/- was deposited by the Petitioner on 10.1.94, The Chairman further stated in his affidavit that the application of the Petitioner dated 25.7.94 was placed before the Board meeting and according to the Chairman the Board found no merit in the application of explanation. "Since the committee was of the opinion that the Petitioner was trying to adopt dilatory tactics in final disposal of the matter". The committee after careful consideration of the enquiry report as well as finding of the enquiry officer unanimously decided in its meeting held on 29.7.94 that the Petitioner was found responsible for committing serious financial irregularities and making false statement and accordingly the Petitioner was dismissed from service. The Chairman made the aforesaid statement on oath and asserted the same to the best of his knowledge. The decision was taken at a meeting and such meeting of the Town Committee at is required under rules and practice to record the minutes of the discussions as well as the resolution passed in the meeting however for reasons best known to the Town Committee no such records were produced before the Court. X Mr. D. Das, learned Counsel for the Petitioner has submitted before this Court that the Town Committee is guided and regulated by the provisions of the Assam Municipal Act, 1956 under sub-section 4 of Section 301 of the said Act, a set of Rules known as Rules for appointment of service under the Board and Town Committee is framed. Under the said Rules more particularly under Rule 19 the Town Committee is duty bound to follow and comply with the procedure prescribed by the said Rules. According to Mr, Das Rules are made for observance and in the instant case the Respondents passed the impugned order of dismissal in total violation of the Rules and also in violation of the principle of natural justice and accordingly the impugned order of dismissal is liable to be set aside. Mr. Das further submits that even otherwise on the facts and situations the impugned order of dismissal is unjust, unfair and unreasonable which required interference from this Court,

(3.) Mr. R.K. Jain, learned counsel appering on behalf of the Respondents on the other hand sought to justity the impugned order of dismissal. According to Mr. Jain the Petitioner is found guilty of misconduct for temporary mis-appropriation of money and therefore the Board was within its competence to dismiss an employee on the ground of misconduct. Mr, Jain further submits mat in the instant case me Board complied with the principle of natural justice so much so that definite charges were framed and the Petitioner was asked to submit his show cause and despite giving opportunity to the Petitioner, the Petitioner preferred not to submit his written statement in time with a view to delay the proceeding and the Board considering all these aspects of the matter proceeded with the matter and accordingly passed the order of dismissal on the basis on materials on record. At this stage it will be pertinent to refer to Rule 19 of the said Rules : "19. (1) No Municipal employee shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No Municipal Board employee shall be punished with dismissal, removal or reduction in rank untill he has given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The following procedure should he scrupulously followed : (i) Drawing up of charges and a statement of allegations on which the charge or charges are based (ii) Communication above to the official concerned and asking him- (a) to file written statement of his defence by a prescribed date which gives him reasonable time and (b) to state whether he desires to be heard in person (iii) Receipt of the explanation of the official; (iv) Recording of oral evidence of ihe official and the witnesses, if an oral enquiry is desired either by the official or by the enquiring officers; (v) Drawing up a report by the enquiring officer containing his findings and penalty proposed to be imposed and its submission by him to the punishing authority (if he himself is not the punishing authority) (vi) Sending a copy of the report of the enquiring officer to the official and asking him to show cause by a particular date which affords him reasonable time way the particular penalty proposed should not be imposed on him; (vii) Receipt of the explanation of the official; (viii) passing of final orders after duly considering the explanation referred to in (vii) above provided that the above shall not apply- (a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge or (b) Where an authority empowered to dismiss or remove a person or lo reduce him in rank is satisfied that for some reasons to be recorded by that authority in writing. It is not reasonably practicable to give to that person an opportunity of showing cause. The said Rule is inconformity with the principle of natural justice.