SAYEED AHMED vs ASSAM AGRICULTURAL UNIVERSITY and 5 ORS.

1.Heard Mr. R. Phukan, learned counsel for the petitioner. Also heard Mr. P. Kataky, learned counsel appearing for the respondent Assam

Agricultural University.

The petitioner was appointed as the Store Keeper Assistant, subsequently re-designated as Store Assistant in the Rice Research Scheme under the

respondent Assam Agricultural University and was posted at the Regional Agricultural Research Station, Titabar. He continued to serve so up to

21.11.2008. By the order dated 25.11.1998 of the Registrar Assam Agricultural University, the petitioner was transferred to the Office of the Chief

Scientist, North Lakhimpur. Against the order of transfer, the petitioner submitted a representation dated 06.12.1988 before the Registrar Assam

Agricultural University, wherein, a technical stand was taken that as the petitioner was a non-teaching member of the university, therefore, under

appropriate resolution there is no provision for any transfer. Be that as it may, by the order dated 24.07.1989 of the Chief Scientist, Regional

Agricultural Research, the petitioner was released from his place of posting so as to enable him to join in his new place of posting. Being aggrieved,

the petitioner preferred a Civil Suit before the Munsiff No.1 resulting in T.S. No.100/1988. The said Civil Suit was ultimately carried to the stage of

second appeal before this Court which was numbered as SA No.164/1997. It is stated that in the title suit, the order of transfer was interfered and the

appeal of the respondent Assam Agricultural University was dismissed by the First Appellate Court. But the second appeal was allowed in favour of

the respondent university meaning thereby that the order of transfer was upheld.

It is stated on behalf of the university that during the intervening period, the petitioner continued to remain absent from service. As a consequence

of the order passed in the second appeal, the Registrar Assam Agricultural University had issued the order dated 10.04.2003 reiterating that the

petitioner was transferred to Lakhimpur and that his intervening period of absence would be considered separately. Although there were certain

earlier show cause notices being issued, but ultimately the respondent university had issued a show cause notice dated 08.01.2004 under Rule 9 of the

Assam Service (Discipline & Appeal) Rules 1964 requiring the petitioner to show cause as to why the appropriate penalty should not be imposed upon

him. The main allegation in the said show cause was of continuous absence from duty.

From the records, it is noticed that after submission of reply by the petitioner, the respondent University through its Registrar had issued an order

dated 05.04.2004, wherein it was provided that the Vice Chancellor of the University was pleased to constitute an enquiry committee with two

members i.e. (i) Dr. R.C Sarma, Professor and Head of the Department (Extension Education) as the Chairman and (ii) Sri Prema Gogoi, Assistant

Registrar (Administration) as a Member and also the Presenting Officer. It is taken note of that the said enquiry committee was constituted in the

spirit of the requirement of Rule-9 of the Assam Service (Discipline and Appeal) Rule, which categorically provides for appointment of an enquiry

officer, as well as in furtherance of the requirement of Article 311 of the Constitution of India, wherein also a concept of holding an enquiry in a

disciplinary proceeding has been incorporated.

Consequent upon such enquiry, an enquiry report was submitted by the enquiry committee, which is signed by Sri R.C Sarma, as the Professor and

Chairman of the enquiry committee. It is also taken note of that Sri R.C Sarma, signs the enquiry report as the Chairman of the enquiry committee,

which gives the impression that the enquiry report was submitted by the enquiry committee and not by Sri R.C Sarma as an enquiry officer. The said

enquiry report was forwarded to the petitioner by the communication dated 01.04.2005 and the petitioner had also submitted his reply to the same by

his representation dated 07.04.2005.

In terms of the aforesaid procedure, the petitioner was terminated from service w.e.f. 24.07.1989 by the order of the Registrar dated 03.08.2005.

Without going into the other aspects of the order of the termination, more particularly, the aspect that the petitioner was terminated with

retrospective effect from 24.07.1989 by an order of 03.08.2005, this Court has noticed that while appointing the enquiry committee, two members

were so appointed and that one of the two members was also appointed as the Presenting Officer. In a disciplinary proceeding, the role of the enquiry

officer is to arrive at the truth as regards the allegation made against the delinquent and for the purpose, the enquiry officer is required to act in an

impartial manner. When one of the enquiry officer in the enquiry committee is appointed as the Presenting Officer, prima-facie it cannot be expected

that the said enquiry committee had acted in an impartial manner inasmuch a part of the enquiry committee is also designated the work of presenting

the case of the department.

In such view of the matter, this Court is of the view that appointing one of the two members of the enquiry committee to be the Presenting Officer

on behalf of the department vitiates the entire proceeding although no specific stand of being prejudiced etc may have been taken by the delinquent.

When the enquiry officer is also the Presenting Officer, the further requirement of prejudice having been suffered is not required and the same by

itself would be sufficient to vitiate the enquiry.

Accordingly, this Court is of the view that the procedure adopted by the respondent authorities in conducting the disciplinary proceeding against the

petitioner stands vitiated and the order dated 03.08.2005 of terminating the petitioner is set aside. However, as the order of termination has been set

aside on a technical reason, no back wages is ordered in favour of the petitioner. But, the respondent authorities may now proceed with the

disciplinary proceeding against the petitioner from the stage of appointing the enquiry officer and thereafter may bring the same to its logical end. In

terms of the above, the writ petition stands disposed of.