Point of Law : Principles of natural justice as contemplated under Rule 9 of the Rules’1964 and under Article 311 of Constitution were not followed in as much as penalty was imposed based on report of an Enquiry Committee, who had no sanction and authority under Rule 1964 to recommend penalty, same being not a departmental enquiry committee as contemplated under said Rules 1964.

JUDGMENT :

Heard Mr. P Mahanta, learned counsel for the petitioner. Also heard Mr. TC Chutia, learned standing counsel for the SEBA representing respondent Nos. 1,2 and 3.

2. The petitioner has preferred this writ petition challenging the order dated 14.02.2017 whereby the petitioner was imposed with the major penalty of reduction in rank.

3. The brief facts leading to filing of the present writ petition can be summarized as follows:

I. The petitioner was appointed as an Assistant Academic Officer by the respondent Board of Secondary Education, Assam (in short Board) on 01.04.1998.

II. Subsequently, the petitioner was appointed as Controller of Examination by order dated 01.08.2009.

III. Thereafter, by order dated 01.08.2011, the petitioner was posted as Academic Officer (Curriculum Reforms) on 09.08.2011.

IV. The petitioner was regularized in the said post by an order dated 29.06.2012.

V. The Service Regulation of the Board, 2016 provides the duties and functions of an Academic Officer, which includes curriculum, syllabus and textbooks development.

VI. It is the case of the petitioner that subsequently he was entrusted with the responsibility of the Academic Officer, Mathematics, and Academic Officer, Social Science, in the year 2012 and 2014 respectively when the said two posts fell vacant.

VII. Thereafter, on 04.07.2016, the petitioner was asked to show cause under Rule 9 of the Assam Services Discipline and Appeal Rules, 1964 read with Article 311 of the Constitution of India asking the petitioner to show cause why penalties prescribed under Rule 7 of the Assam Services Discipline and Appeal Rules, 1964 (in short Rules 1964) shall not be inflicted upon him.

VIII. In the said show cause notice, five charges were made against the petitioner containing five statements of allegations.

IX. Subsequent to such show cause, the petitioner by his communication dated 01.08.2016 requested the Secretary of the Board to allow him to inspect certain documents related to the enquiry, though he filed his reply along with his communication, denying the allegations made against him.

X. Subsequent to this, the impugned order dated 14.02.2017 was issued, whereby, the petitioner, who was under suspension was re-instated in the service with immediate effect, however, he was de-graded to the post of Assistant Academic Officer.

XII. The period of suspension of the petitioner was regularized as on duty for all purposes. By the said order the petitioner was warned not to repeat such type of negligence in duty in future. Being aggrieved, this present writ petition is filed.

3. Mr. P. Mahanta, learned counsel for the petitioner assails the impugned order on the following counts:

I. The procedure mandated under Rule 9 of the Assam Services (Discipline and Appeal) Rules 1964 (in short Rule, 1964) has not been followed.

II. There is complete violation of Rule 9(2) of the Rules 1964 as no list of witnesses and no list of documents were furnished with the show cause notice.

III. There is further violation of Rule 9 (6) of the said Rule as no formal enquiry was conducted, the petitioner was not asked to participate in any enquiry, no witnesses were allowed to be cross-examined, no witness was allowed to be led in support of the case of the petitioner and no defense assistance was allowed. Therefore, the entire proceeding was vitiated, submits Mr. Mahanta, Learned Counsel. In support of such contention, Mr. Mahanta relies on the decision of the Hon’ble Apex court State of Uttar Pradesh and others –Vs-Saroj Kumar Sinha reported in 2010 2 SCC 772.

IV. The allegation made in the show cause notice dated 04.07.2016 cannot be treated to be act of misconduct inasmuch as bare perusal of the allegations so made reflects no misconduct on the part of the petitioner. Therefore, no proceeding could have been initiated against the petitioner. In support of such submission, Mr. Mahanta relies on the decision of the Hon’ble Apex Court in Union of India Vs. J Ahmed reported in 1979 2 SCC 286.