On The Death Of Jamal Uddin Ahmed His Legal Heir vs State Of Assam And 2 Ors

Heard Mr. H.K. Sarma, learned counsel for the petitioner as well as Mr. B. Gogoi, learned Standing counsel for the Health Department appearing for all the respondents.

In course of the proceedings of this writ petition, the petitioner had expired on 20.11.2020 and accordingly, by virtue of order dated 07.04.2021 passed in IA(C) 524/2021, the name of the petitioner No.1(a) was substituted and accordingly, the substituted petitioner is now before the Court.

While working as Upper Division Assistant (UDA) in the office of the respondent no.3, the husband of the petitioner was arrested on 01.06.2016 in connection with Morigaon P.S. Case No.167/2016 under section 7 of the Prevention of Corruption Act, 1988. Accordingly, the petitioner was suspended by order dated 08.06.2016 passed by the respondent no.2. Aggrieved by the continuous suspension of the husband of the petitioner, he had approached this Court by filing WP(C) 2467/2019. This Court had disposed of the writ petition by order dated 11.04.2019 by providing that the respondent authorities would verify the submission of the petitioner as to whether any charge-sheet has been filed by the authorities in the departmental enquiry or any criminal case is pending against him within the period of 3(three) months from the passing of the suspension order, further providing that if not, the order impugned therein would stand set aside and the petitioner would be entitled to be reinstated. It was directed that the exercise shall be undertaken by the respondent authorities within a period of 1(one) month from the date of receipt of the certified copy of the order. Correction in the nomenclature of the respondent no.2 as mentioned in the order dated 11.04.2019 in WP(C) 2467/2019 was made by order dated 29.04.2019 passed in IA(C) 1451/2019 in WP(C) 2467/2019. By representations dated 22.04.2019 and 04.05.2019, the aforesaid orders were served on the competent authority.

By the impugned order under memo no. HSFW/Esstt./Enquiry/116/2019 dated 10.10.2019, on the basis of enquiry report submitted under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964, the disciplinary authority accepted the findings and recommendations made in the report of the enquiry officer and accordingly, imposed penalty under Rule 7 (ii) to the extent of stoppage of two annual increments and it was also ordered that the petitioner would be paid nothing during his first 6 months suspension period except 75% of subsistence allowance already paid, and the order of suspension was revoked with immediate effect on the reinstatement of the petitioner in service. The said order has been challenged in this writ petition filed under Article 226 of the Constitution of India.

The learned counsel for the petitioner has submitted that the husband of the petitioner was never put to notice of the finding recorded against him in respect of the report of the Inquiry officer and that the husband of the petitioner was also not given any opportunity of defending himself before punishment was imposed and accordingly, it is submitted that there was a violation of Rule 9 of the Assam Services (Discipline and Appeal) Rules 1964.

Per contra, the learned Standing counsel for the Health Department has defended the impugned order to impose punishment on the petitioner. It is submitted that the petitioner was caught and arrested red-handed while illegally receiving Rs.5000/- from the beneficiary under the Sterilization Failure Scheme who was to get the benefit of Rs.30,000/-. By referring to Annexure-B to the affidavit-in-opposition, it is submitted that the articles of charges were submitted against the husband of the petitioner and that he had also filed his written statement.

It is submitted that while 3 witnesses were examined by the Presenting officer, the husband of the petitioner had examined no witnesses. Accordingly, it is submitted that the recommendations made by the Inquiry officer was to the effect that two annual increments of the petitioner be stopped was fully justified and accordingly it is submitted that appropriate punishment was imposed upon the husband of the petitioner.

Upon Court query, the learned Standing counsel for the respondents has submitted that there is nothing on record to show that on acceptance of the inquiry report and before imposing punishment on the husband of the petitioner, he was put to notice by the respondents.

In view of the said submissions made by the learned Standing counsel for the respondents, it ex facie appears that the provision of Clause-(b) of Sub-Rule 12 of Rule 9 of the Assam Services (Discipline and Appeal) Rules 1964 was not complied with. Accordingly, the Court is inclined to hold that there was a procedural lapse of non-compliance of Clause-(b) of Sub-Rule 12 of Rule 9 of the said 1964 Rules. Accordingly, the Court is constrained to hold that non-compliance of the aforesaid rules invalidates the punishment awarded to the husband of the petitioner.

Ordinarily, the Court would have directed to proceed a de novo from the stage of Sub-Rule 12 of Rule 9 of the Assam Services (Discipline and Appeal) Rules 1964. However, in the present case, the husband of the petitioner had expired on 20.11.2020 and under such circumstances, the further proceedings would be deemed to have been abated. Consequently, the order of punishment dated 10.10.2019, by which it was ordered for stoppage of 2(two) annual increments and forfeiture of balance 25% of subsistence allowance is hereby set aside and quashed.

Resultantly, on the death of the husband of the petitioner, the petitioner would be entitled to receiving the dues payable to her husband on account of 2(two) annual increments and balance 25% of subsistence allowance to be calculated by the respondents.

Consequent to the setting aside of the impugned order under Memo No. HSFW/Esstt./Enquiry/116/2019 dated 10.10.2019 (Annexure-13) to the writ petition, the Director of Health Services (respondent no.2) shall carry out the exercise of calculating the dues payable to the petitioner on account of 2(two) annual increments and 25% balance of subsistence allowance receivable by her husband and the said dues shall be paid to the petitioner within the outer period of 4(four) months from the date of receipt of the certified copy of the order by the respondent no.2.

This writ petition stands allowed to the extent as indicated above.

There shall be no order as to costs.