Point of Law: It is by now well settled that once the court sets aside an order of punishment on the ground that enquiry was not properly conducted, the court may not reinstated the employee and it must remit the concerned case to the Disciplinary Authority for it to conduct the enquiry from point it was vitiated and conclude the same.

JUDGMENT :

Heard Mr. U.K. Nair, the learned Senior Counsel assisted by Mr. S. K. Das, the learned counsel for the petitioner. Also heard Mr. D. Mazumdar, the learned Senior Counsel assisted by Ms. M. Bhattacahrjee, the learned Government Advocate, Assam representing the respondent No. 4.

1. The petitioner herein who was a Head Assistant under respondent No. 4 i.e. Barpeta Road Municipal Board, by way of this writ petition challenges the order dated 26.08.2016 whereby the petitioner was dismissed from service. He also challenges the order dated 20.02.2017 passed by the appellate authority upholding the order of dismissal.

Contentions raised by the petitioner:

2. The brief case of the petitioner is as under:-

(i) As an offshoot of the earlier bitterness, the Barpeta Road Municipal Board i.e. respondent No.4 (herein after referred as Board) issued a show cause notice to the petitioner alleging misbehavior with the Chairperson, Vice-Chairperson and Executive Officer inside the office chamber of the Executive Officer of the Board. According to the petitioner, subsequent to this, he was pressurized to admit the alleged guilt or to face action and under such duress, he submitted his reply on 29.02.2016. According to the petitioner, he has not admitted the guilt but at the same time, he stated that if he had committed any misconduct, that was un-intentional and prayed for forgiveness. Subsequently, on 14.03.2016, the petitioner was put under suspension pending drawl of the departmental proceeding.

(ii) According to the petitioner on, 13.05.2016, a charge memo was drawn against him and he was asked to appear personally before the Enquiry Committee on 16.05.2016 at 11:00 AM.

(iii) Such decision for drawl of departmental enquiry and appointment of Enquiry Committee was taken by the Board on 07.03.2016.

(iv) The petitioner contends that he appeared before the Enquiry Committee at 10:30 AM on 16.05.2016 as directed and on the same day itself, he filed an application before the Enquiry Committee to allow him to appoint a defense counsel for his defense during the time of enquiry.

(v) The petitioner further contends that while he was waiting for the response from the Enquiry Committee on his prayer for appointment of counsel as stated hereinabove, suddenly on 05.08.2016, he received a second show cause notice, inter alia asking him, as to why he should not be dismissed from his service as all allegations are proved in the departmental proceeding.

(vi) The petitioner vide his communication dated 08.08.2016 filed his reply inter alia contending that the Enquiry Committee refused to allow him to appear with his lawyer. Also contending that the said enquiry was bias, perverse, motivated and with a premeditated intention. He also contended in the said communication that the entire proceeding stand vitiated as the principle of fair play and natural justice was not followed.

(vii) Subsequent to this, vide the impugned order dated 26.08.2016, the petitioner was dismissed from service of the Board. The said communication dated 26.08.2016 reflects that vide resolution No. 2 passed by the Board held in its meeting on 20.08.2016, the Board had rejected his reply to the second show cause notice dated 08.08.2016.

(viii) Being aggrieved, the petitioner preferred a statutory appeal under Section 50(2) of the Assam Municipal Act, 1956. In the said appeal amongst other, the petitioner raised the issue that while initiating the departmental proceeding, the Rule 9 of the Assam Services (Discipline & Appeals) Rules, 1964 has been violated more particularly no specific and definite charges were framed, no statement of the petitioner were recorded, no list of documents and witnesses were given, prayer for allowing a defence counsel of the petitioner was denied.

(ix) While such appeal was pending before the Appellate Authority, the petitioner approached this court by way of WP(C) No. 6849/2016. The said writ petition was disposed of directing the Appellate Authority to dispose