Petitioner challenged proposed dismissal from service based on a disciplinary enquiry report. Court held that since the Disciplinary Authority had not yet passed the final order and still considered the petitioner's representation, the matter was premature for writ jurisdiction.
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GAHC010019642020
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 546/2020
1:A.K.ADHYAPOK
PRINCIPAL, GOVT DENTAL COLLEGE, SILCHAR, R/O- SANDHYA APARTMENT, FLAT A1, BANPHOOL PATH, DISPUR, GUWAHATI- 781006, ASSAM
VERSUS
1:THE STATE OF ASSAM AND 3 ORS
COMMISSIONER AND SECRETARY, HEALTH AND FAMILY WELFARE DEPTT, DISPUR, GUWAHATI- 06, ASSAM
2:THE PRINCIPAL SECRETARY GOVT OF ASSAM HEALTH AND FAMILY WELFARE (B) DEPTT DISPUR GHY- 06 ASSAM
3:THE DIRECTOR OF MEDICAL EDUCATION OFFICE OF THE DIRECTOR OF MEDICAL EDUCATION KHANAPARA GUWAHATI- 22 ASSAM
4:MUKUL CHANDRA GOGOI INQUIRY OFFICER OFFICER ON SPECIAL DUTY HEALTH AND FAMILY WELFARE DEPTT GOVT OF ASSAM DISPUR GUWAHATI- 0
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Advocate for the Petitioner : MR. K M CHOUDHURY
Advocate for the Respondent : SC, HEALTH
B E F O R E
HON’BLE MR. JUSTICE MANASH RANJAN PATHAK
Dates of Hearing : 30.01.2020, 31.01.2020 & 03.02.2020
Date of Judgment and Order : 03.02.2020
JUDGMENT AND ORDER (ORAL)
Heard K. N. Choudhury, learned Senior counsel assisted by Mr. N. Barman, learned counsel for the petitioner and Mr. D. Saikia, learned Senior counsel and Senior Standing counsel for the Health and Family Welfare Department assisted by Mr. D. P. Borah, learned Standing counsel, Health and Family Welfare Department for the State respondent Nos. 1 to 3.
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of his suspension, he preferred WP(C) No. 2863/2018 and also filed an application on 02.05.2018 before the authority of the Health and Family Welfare Department of the State for revocation of his suspension order. By Notification dated 08.05.2018 the respondent Health and Family Welfare Department decided to continue with the suspension of the petitioner until further order. Said decision dated 08.05.2018 was challenged by the petitioner in WP(C) No. 3038/2018.
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informed the petitioner submitted the original terms and conditions of comprehensive maintenance contract along with the necessary documents and extended such AMC with the concerned establishment increasing the rate @ 10% for subsequent extension with due knowledge and approval of the authority.
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reliance on the judgment of the Hon’ble Apex Court in the case of Girish Bhushan Goyal Vs. BHEL, reported in (2014) 1 SCC 82.
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penalty upon him, which is in clear violation of law. In this regard, Mr. Choudhury, learned senior counsel for the petitioner relied upon the Judgment of the Hon’ble Apex Court in the case of M. Raghavelu Vs. Government of A.P. & Another, reported in (1977) 10 SSC 779.
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Disciplinary Authority.
If the disciplinary authority having regard to its finding on the charges and on the basis of evidence adduced during the inquiry, is of the opinion that any of the penalties specified in Clauses (iv) to (vii) of Rule 7 Should be imposed on the Government servant it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the Commission the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty and the Government servant.
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Constitution to protect observance of his/her right by restraining those who threatened to violate it. If a threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced. If the right has already been violated, what is left is the remedy against such violation and for restoration of the right.
An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom in enquiry is held must be
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informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed: it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.
27) A Constitution Bench of the Hon’ble Supreme Court (Five Judges Bench) in the case of A.K. Kraipak Vs. Union of India, reported in (1969) 2 SCC 262 have held that –
The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision.
The Court should not interfere with the administrator’s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in
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defiance of logic or moral standards. In view of what has been stated in Wednesbury case [Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corpn., (1947) 2 All ER 680 (CA)] the Court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.
In a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not reappreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has reappreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations levelled against Respondent 1 do not constitute any misconduct and that Respondent 1 was not guilty of any misconduct and accordingly set aside the impugned order of the High Court and allowed the appeal.
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JUDGE
Comparing Assistant
2 issues framed by the court
Whether the writ petition challenging the proposed dismissal from service should be entertained when the disciplinary authority has not yet passed the final order.
Whether the writ jurisdiction can interfere with the pending disciplinary proceedings under Article 226 of the Constitution of India before the final penalty is imposed.
Colour shows how this judgement treated each authority
Girish Bhushan Goyal Vs. BHELReferred¶42
Girish Bhushan Goyal Vs. BHEL, (2014) 1 SCC 82 · Who else cites this
Bongaigaon Refinery and Petro Chemicals Ltd. Vs. Girish Chandra SarmaReferred¶44
Bongaigaon Refinery and Petro Chemicals Ltd. Vs. Girish Chandra Sarma, (2007) 7 SCC 206 · Who else cites this
M. Raghavelu Vs. Government of A.P. & AnotherReferred¶46
M. Raghavelu Vs. Government of A.P. & Another, (1977) 10 SSC 779
S.M.D. Kiran Pasha Vs. Government of Andhra Pradesh & Ors.Explained¶48
S.M.D. Kiran Pasha Vs. Government of Andhra Pradesh & Ors., (1990) 1 SCC 328 · Who else cites this
State of Orissa Vs. Binapani DeviExplained¶63
State of Orissa Vs. Binapani Devi, AIR 1967 SC 1269 · Who else cites this
A.K. Kraipak Vs. Union of IndiaReferred¶67
A.K. Kraipak Vs. Union of India, (1969) 2 SCC 262 · Who else cites this
Roop Singh Negi Vs. Punjab National BankReferred¶69
Roop Singh Negi Vs. Punjab National Bank, (2009) 2 SCC 570 · Who else cites this
State of Punjab Vs. Bakhtawar SinghReferred¶69
State of Punjab Vs. Bakhtawar Singh, (1972) 4 SCC 730 · Who else cites this
Chairman and Managing Director, United Commercial Bank Vs. P.C. KakkarExplained¶71
Chairman and Managing Director, United Commercial Bank Vs. P.C. Kakkar, (2003) 4 SCC 364 · Who else cites this
SBI Vs. Ram Lal BhaskarDistinguished¶76
SBI Vs. Ram Lal Bhaskar, (2011) 10 SCC 249 · Who else cites this
A.K. Adhyapok
The State of Assam
Commissioner and Secretary, Health and Family Welfare Deptt
The Principal Secretary Govt of Assam Health and Family Welfare
The Director of Medical Education
Mukul Chandra Gogoi
Manash Ranjan Pathak
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
