NIRANJAN GHOSH Vs. STATE OF ASSAM

JUDGEMENT

(1.) The petitionerwas a member of the Indian Administrative Service working in the State Government of Assam. He retired from service on 31.5.97 on superannuation. After his retirement, he received a memorandum dated 17.9.98 issued by Chief Secretary to the Govt. of Assam. In the said memorandum, it is stated that the Govt. of Assam proposed to hold an enquiry against petitioner under Rule-8 of the All India Services(Discipline & Appeal) Rules, 1969 read with rule 6( 1 )(b) of the All India Services(Death-cum-Retirement) Rules, 1958. Along with the said memorandum dated 17th September, 1998, the articles of charges and statement of imputations of misconduct in support of the articles of charges against petitioner have been annexed as Annexures I & II. The charges against the petitioner are that while he was holding the post of Secretary to the Govt. of Assam, Excise Department, a notification was issued for merger of State Sales Tax with the State Excise Duty on 16.9.94 pursuant to a Cabinet decision taken on 22.12.92. but the petitioner withdraw the said notification dated 16.9.94 and issued another notification dated 20.9.94 without the approval of the Cabinet. The petitioner was therefore guilty of violating the provisions of the Assam Rules of Executive Business and Rule 3 of the All India Services (Conduct) Rules, 1968. Simultaneously, the petitioner was also served with a communication dated 17th September, 1998 of the Chief Secretary to the Govt of Assam informing him that the Govt. of India by order dated 17.9.98 has conveyed sanction for institution of departmental proceedings against the petitioner for major penalty under Rule 6( 1) (b)(i) of the All India Services(Death-cum- Retirement) Rules, 1958. Alongwith the said communication dated 17th September, 1998, a copy of the order dated 17th September, 1998 of the Govt. of India, Ministry of personnel, sanctioning departmental proceedings against the petitioner was also enclosed. By the memorandum dated 17th September, 1998 the petitioner was asked to his submit his written statement of his defence. In reply, the petitioner sent a letter dated 29th September, 1998 to the Chief Secretary to the Govt. of Assam stating inter alia that the alleged events took place during the period 1992-94 and he was not a position to recollect the then ground realities and that in the interest of equity, justice and fairplay, the State Government should drop the departmental proceedings initiated against the petitioner. When no reply was received by the petitioner from the Chief Secretary to the Govt. of Assam, the petitioner wrote another letter dated 1st November, 1998 to the Chief Secretary the Govt. of Assam, reiterating his request to drop the departmental proceedings against him. In the said letter dated 1st November, 1998 the Petitioner also contended that (the departmental proceedings were initiated against him in violation of the provisions of Rule 6(1 )(b) of the All India Services(Death-cum-Retirement) Rules. 1958 and therefore should be dropped. Since, the departmental proceedings against the petitioner have not been dropped, the petitioner has filed this application under Article 226 of the Constitution for quashing the memorandum dated 17th September, 1998 issued by the Chief Secretary to the Govt. of Assam as well as enquiry proposed to be held against the petitioner pursuant to the said memorandum. The petitioner has also prayed for a direction to the respondents to pay his pending financial and retirement benefits such as, gratuity pension commutation leave encashment etc.

(2.) Mr SN Bhuyan, learned counsel for the petitioner submitted that the petitioner has retired from service on 31.5.97 and is no longer a member of an All India Service. The Central Administrative Tribunal therefore does not have jurisdiction under Section 14 of the Administrative Tribunals Act 1985 (for short 'the Act') to decide the present dispute between the Petitioner and the Respondents. He argued that even if the Central Administrative Tribunal had jurisdiction under the Act to decide the dispute between petitioner and Respondents, the High Court also has powers under Article 226 of the Constitution to entertain and decide the dispute. He explained that in the earlier case of S.P. Sampath Kumar-Vs-Union of India AIR 1987 SC 386 the Supreme Court had held that the Tribunal constituted under the Act was not supplemental to the High Court but a substitute for the High Court. But in the later case of L Chandra Kumar V Union of India (1997) 3 SCC 261 (1997 1 GIT (SC) 1) the Supreme Court held that the Tribunal constituted the Act played a supplementary rule to the High Court under Article 226/227 of the Constittuion and that the jurisdiction of the High Court under Article 226/227 of the Constitution was not ousted. Mr Bhuyan relied on the decision of the Supreme Court in the case of State of A. P. V. K. Mohanlal(1998) 5 SCC 468 in which the Supreme Court took note of the aforesaid of law laid down in the cases of SP Sampath Kumar and L Chandra Kumar and observed that the power of judicial review of the decisions of the Tribunals is now expressly preserved as a basic feature of the Constitution in the judgment of Supreme Court in the case of L Chandra Kumar. According to Mr. Bhuyan, therefore, even in respect of matters within the juridiction of the Central Administrative Tribunal, the High Court can exercise its power under Article 226 of the Constitution. He cited the decision of the Surpeme Court in Kartar Singh V State of Punjab(1994) 3 SCC 569 in which it was held that if the High Court was inclined to entertain any application in respect of a matter arising out the TADA Act, this power should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances.

(3.) Mr. Bhuyan vehemently argued dial the present case is one such rare and appropriate case of extreme nature in which the High Court should exercise its power under Article 226 of the Constitution. He submitted that the under Rule 6 of the All India Services(Death- cum-Retirement) Rules, 1958, departmental proceedings can be instituted against a government servant who has retired from service in respect of an event which took place not more than four years before the institution of the departmental proceedings. In the instant case, the event in respect of which the departmental proceedings are sought to be instituted against the petitioner took place on 20.9.94 and four years(365 days X 4) have expire on 16.9.98 from the date of said event. Therefore, the institution of departmental proceedings against the petitioner by the impugned memorandum on 17.9.98 was beyond the jurisdiction of the resondents under the said Rule 6 of the All India Services (Death-cum-Retirement) Rules, 1958. Mr Bhuyan further submitted that in any case the charges and statement of imputations against the petitioner do not show that any pecuniary loss has been caused to the Government on account of the notification dated 29.9.94 alleged to have been issued by the petitioner. Hence the departmental proceedings instituted against the petitioner will cause unnecessary harassment to him.