Allowed

Bate Koyu v. The Arunachal Pradesh Public Service Commission (Appsc) and 3 Ors.

Gauhati HC15 Dec 2021WP(C)/312/2021

Case brief

AI extract

What is this about?

The Gauhati High Court quashed a departmental proceeding against Deputy Secretary Bate Koyu regarding a question paper leakage allegation. The court held the charges were vague, violating natural justice, noted an inordinate six-year delay, and ruled that compelling the petitioner to testify against co-accused violated fundamental rights, exonerating him.

What did the court decide?

The Memorandum of Charge and the departmental proceeding initiated against the petitioner are set aside; the petitioner is exonerated from the charges.

Bate Koyu Vs The Arunachal Pradesh Public Service… — Service and Employment | Gauhati HC (2021)

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Page No.# 1/11

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GAHC040008272021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)

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Case No. : WP(C) 312/2021

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1:Bate Koyu S/o Late Koba Koyu presently residing at Quarter No. 30 B Sector Itanagar P.O and PS Itanagar District Papum Pare Arunachal Pradesh and a permanent resident of Seren Village. P.O and PS Nari Lower Siang DIstrict Arunachal Pradesh. 919436040968

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VERSUS

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1:The Arunachal Pradesh Public Service Commission (APPSC) and 3 Ors. Through Its Secretary APPSC APPSC Building Govt. of A.P Itanagar.

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2:The Secretary (Textile and Handicrafts) Inquiry Officer appointed vide order date 08.05.2021 for enquiring into the charges framed against the petitionwe vide Memorandum of Charges dated 15.01.2015

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3:The Chief Secretary Govt. of A.P Itanagar 4:The Secretary (Personnel) Govt. of A.P. Itanagar

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Advocate for the Petitioner :K. Dabi, Adv. Advocate for the Respondent : Ajin Apang Sr. Advocate

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Page No.# 2/11

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:::BEFORE:::

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HON’BLE MR. JUSTICE SUMAN SHYAM

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Date of hearing : 15.12.2021 Date of judgment : 15.12.2021

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JUDGMENT & ORDER (ORAL)

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Heard Mr. K. Dabi, learned counsel appearing for the writ petitioner. I have also

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heard Mr. A. Apang, learned senior counsel assisted by Ms. N. Anju, learned counsel representing the respondent nos. 1 to 3 and Ms. P. Panging, learned counsel appearing for the respondent no. 4.

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By filing this writ petition, a challenge has been made to the departmental proceeding initiated against the writ petitioner herein by the Memorandum of Charges dated 15/01/2015, primarily on three counts. Firstly, that there has been un-explained delay in concluding the disciplinary proceeding. Secondly, the charge brought against the writ petitioner is vague, as a result of which, he is unable to properly defend his interest in the matter and thirdly, the petitioner has been compelled to become a witness against the delinquents in the four other departmental proceedings arising out of the same incident where, the only variance in the charge memorandum is with regard to the nature of duty of each of the delinquent official, and therefore, he has practically been compelled to be a witness against himself.

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Page No.# 3/11

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The facts of the case as is apparent from the materials available on record is that

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after the examination for the General Studies (Paper-II) of the Arunachal Pradesh Civil Services (APCS) was held on 14/09/2014, a number of candidates had made postings in the social media alleging that the question paper of General Studies (Paper-II) was in circulation even before the examination. It appears that some of the candidates had even submitted representations before the Hon’ble Governor of Arunachal Pradesh alleging leakage of the General Studies (Paper-II) question paper. In view of such social Media Posts, there was a hue and cry in the society which had prompted the concerned authorities to order for a Magisterial Enquiry. An FIR was also lodged, based on which Crime Branch (CB) PS Case No. 01/2015 was registered under Section 120(B)/380/381/403/408/ 468/420/34 of the IPC read with Sections 5(1)(a) (c) and (d) of the Official Secrets Act, 1923 against five accused persons including the present petitioner,i.e. Bate Koyu, Nima Tondrang, Debashis Dey, Joram Nagu and Swaroop Bhattacharjee. Around that time, Memorandum of Charge dated 15/01/2015 was served upon the writ petitioner asking him to submit his reply. Although the petitioner had denied the allegation brought against him, not satisfied with his reply, a departmental proceeding was initiated against the petitioner, which is yet to be concluded. It appears from the materials on record that more or less similar allegations were brought against the four other officials as well. .

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Mr. Dabi, learned counsel for the writ petitioner has argued that having been discharged in the criminal proceedings and the Magisterial inquiry having failed to identify the actual culprit, no case is made out against the petitioner for even a disciplinary proceeding. Mr. Dabi further submits that since the charge brought against his client is completely vague and there has been unexplained delay in completing the departmental proceeding, this is a fit case for quashing the proceeding itself. Mr. Dabi has further argued that the petitioner is cited

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Page No.# 4/11 as one of the witnesses by the departmental authorities to testify against the delinquent officials in other four connected proceedings, involving identical charge, which proceedings are pending at the same stage. The petitioner has been cited as a witness in those cases against his wishes and by ignoring his reluctance to testify the matter. Mr. Dabi contends that his client has faced the criminal proceeding for nearly seven years and has also been subjected to a disciplinary proceeding, which has not been taken forward by the authorities. Therefore, no further harassment to the petitioner is called for in the facts and circumstances of this case. Under the circumstances, the petitioner’s counsel has prayed for quashing the Departmental Proceeding. In support if his aforesaid argument, Mr. Dabi has relied upon the decision of the Apex Court rendered in the case of Anant R. Kulkarni Vs. Y. P. Education Society and others reported in (2013) 6 SCC 515 as well as the decision rendered in the case of Prem Nath Bali Vs. Registrar, High Court of Delhi and another reported in (2015) 6 SCC 415.

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Responding to the above, Mr. Apang, learned senior counsel appearing for the APPSC authorities has argued that the stand of the respondent has been brought on record by filing affidavit. He submits that the information regarding leakage of question paper had created sensation within the State of Arunachal Pradesh, as a result of which, an inquiry was ordered into the matter. Mr. Apang further submits that an Enquiry Officer has already been appointed to go into the charge brought against the writ petitioner and the delay, if any, in the matter, is due to the reluctance on the part of the petitioner to appear before the Enquiry Officer. Under such circumstances, submits Mr. Apang, there is no scope for this Court to interfere with the departmental proceeding.

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I have considered the submissions advanced by the learned counsel for both the

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Page No.# 5/11

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parties and have also gone through the materials available on record.

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It appears from the pleadings of the parties that the writ petitioner was serving as

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the Deputy Secretary, APPSC, Itanagar, when the alleged incident pertaining to leakage of question paper of General Studies (Paper-II) examination, scheduled on 14/09/2014 took place.

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From the memorandum of charges furnished to the writ petitioner, it can be seen that the allegations brought against him is one of gross irregularities or negligence in discharge of official duties with a dishonest motive and also for disclosing secret/confidential information. The statement of imputation of misconduct annexed as annexure-II to the Memorandum of Charge, is reproduced herein below for ready reference :-

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“ANNEXURE-II

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Statement of imputation of misconduct or misbehavior in support of the articles of charge framed against Shri Bate Koyu, Deputy Secretary, Arunachal Pradesh Public Service Commission.

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That the said Shri Bate Koyu while functioning as Deputy Controller of Examinations (DCoE) during the period from 4^th Feb, 2013 to 24^th Dec, 2014.

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That during the aforesaid period and while functioning in the aforesaid office the said Shri Bate Koyu was assigned duty as DCoE to ensure that the secret and confidential papers are in safe custody. He being DCoE was co-incharge of the confidential cell where such secret and confidential papers are kept. He was to make ensure that no such secret and confidential papers are leaked/sent outside of the confidential cell without permission of the competent authority. Master copy of the unused question papers of the previous year/occasions were

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Page No.# 6/11 also in the custody of DCoE. Whereas the master copy of the unused question paper of Arunachal Pradesh Public Service Combined Competitive Exam (APPSCCE) (Mains) GS-PaperII, 2011 is missing from the confidential cell.

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Further, copy of master copy of the unused question paper of APPSCC Exam (Mains) GSPaper-II, 2011 is shown/alleged as leaked.

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That during the aforesaid period and while functioning in the aforesaid office the said Shri Bate Koyu being DCoE was not ensuring of proper log book for confidential cell, keys of the confidential cell were kept open in a casual way, accessibility to the confidential cell was not checked.

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From the foregoing, it is evident that Shri Batee Koyu failed to maintain absolute integrity, devotion to duty and maintaining official information and committed gross misconduct which is unbecoming of employees in the Arunachal Pradesh Public Service Commission.

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He thereby contravened Rule 3 & 11 of the CCS ( Conduct) Rules 1964 as made applicable to the employees of Arunachal Pradesh Public Service Commission.”

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From a careful examination of the materials available on record, I find that taking

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note of the complaint made by some of the candidates, a one-man Magisterial Enquiry Committee was appointed, who, after conducting a detailed enquiry into the matter, had submitted a report dated 04/10/2014. In the Magisterial Enquiry Report dated 04/10/2014, it has been mentioned that during 2011-12 examination, two question papers of General Studies was placed before the Lottery Board. The question paper which is alleged to have been leaked is the one which was left out in 2011-12 but the same was picked up again and used in the examination held in the year 2014 after making certain corrections. The Magisterial Inquiry report has further mentioned that there were four persons, viz. (1) Sri Nima Tondrang, Joint Secretary, APPSC and Ex-officio Controller of Examination, (2) Sri Bate

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Page No.# 7/11 Koyu, Deputy Secretary, APSC and Ex-officio Deputy Controller of Examination, (3) Debashis Dey, Private Secretary to the Chairman, APSC and Confidential Assistant (handling of confidential papers, computer typing etc.) and (4) Sri Swaroop Bhattacharjee, Personal Assistant to the Joint Secretary (Handling of matters related to typing, photocopy, securing safe custody etc.) were directly or indirectly having access to the confidential papers. The report dated 04/10/2014, however, did not name any person specifically responsible for leaking of question paper.

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From the contents of the report of the Magisterial enquiry, what transpires is that the question paper which is alleged to have been leaked was actually a modified version of the question paper for General Studies prepared in connection with the examination held in the year 2011-12 but was not picked up by the authorities during the draw of lots. The said question paper was admittedly in public domain much before the examination was held on 14/09/2014.

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Mr. Dabi has forcefully argued that some candidates had obtained the discarded question papers connected with the examination held in the year 2011-12 and it was the same question papers which subsequently went out in public domain as the “leaked” question paper. Mr. Dabi further submits that there is not even an iota of evidence to show that the writ petitioner had direct or indirect role in leaking any question paper and the incident appears to be the outcome of mistaken facts and also the failure of the authorities to handle the disposed of question papers of previous examinations in a proper manner.

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It is also seen from the materials available on record that although the charge sheet was submitted against all the five accused persons in connection with CB PS Case No.1/2015,

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Page No.# 8/11

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yet, all the accused persons had been discharged by the learned trial Court and the State has not assailed the order of discharge.

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From a plain reading of the statement of imputation furnished to the petitioner, it is seen that material facts and particulars of the alleged misconduct is not available nor is there anything to indicate that the petitioner was directly or indirectly involved with the “leakage” of question paper by abusing or misusing his official position. In other words, allegation brought against the writ petitioner appears to be totally vague and the same, taken on its face value, does not constitute a misconduct in the opinion of this Court. Therefore, I find force in the submission of Mr. Dabi that the allegations brought against the petitioner are absolutely vague and, therefore, the Departmental Enquiry deserves to be interdicted by this Court on such count alone.

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In so far as the delay in concluding the proceeding is concerned, here also, no satisfactory explanation is coming from the respondent authorities as to why the proceedings could not be concluded till date i.e. even after more than six years, that too, after the order dated 26/03/2021 was passed in WP(C) 482/2019 filed by present petitioner, viz. Bate Koyu, wherein, it was directed that the departmental proceeding be concluded within three months.

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Coming to the third argument of the petitioner’s counsel, it is not in dispute that all the delinquent persons have been named as witnesses in the Departmental Proceeding so as to testify against the delinquent in the other cases. It is the salutary principle of law, as embodied under Article 20 (3) of the Constitution of India, that no person/accused can be forced to be a witness against himself. Although, Article 20(3) pertains to a criminal proceeding, yet, this Court is of the opinion that the said provision would be applicable in

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Page No.# 9/11 spirit in other proceeding as well. Since the incident, which led to initiation of the disciplinary proceeding against all the five delinquent officials is one and the same, which is leakage of question paper of General Studies (Paper-II) in the Civil Services Examination of the State held in the year Sept, 2014 and since the allegation against all the delinquent officials are more or less of the same nature and the proceeding is carried out analogously, hence, this Court is of the unhesitant opinion that compelling the petitioner to be an witness in the Departmental Enquiry Proceedings initiated against four other persons would practically amount to being a witness against himself. As such, the writ petitioner was fully justified in refusing to take part in the departmental proceeding on such ground.

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In the case of Anant R. Kulkarni (Supra), taking note of vague charges served upon the delinquent official in an inquiry proceeding, the Supreme Court has made the following observations :-

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“16. Where the charge-sheet is accompanied by the statement of facts and the allegations are not specific in the charge-sheet, but are crystal clear from the statement of facts, in such a situation, as both constitute th same document, it cannot be held that as the charges were not specific, definite and clear, the enquiry stood vitiated. Thus, nowhere should a delinquent be served a charge-sheet, without providing to him, a clear, specific and definite description of the charge against him. When statement of allegations are not served with the chargesheet, the enquiry stands vitiated, as having been conducted in violation of the principles of natural justice. The evidence adduced should not be perfunctory; even if the delinquent does not take the defence of, or make a protest that the charges are vague, that does not save the enquiry from being vitiated, for the reason that there must be fair play in action, particularly in respect of an order involving adverse or penal consequences. What is required to be examined is whether the delinquent knew the nature of accusation. The charges should be spedific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges….”

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Page No.# 10/11

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Having regard to the nature of charge sheet submitted in this case, I am of the view

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that the principles laid down in the case of Anant R. Kulkarni (Supra) would be squarely applicable to the facts of the present case. As has been observed above, the charge brought against the petitioner is totally vague and hence, not capable of being answered by the delinquent.

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In so far as the delay in conclusion of Disciplinary Proceeding is concerned, law has been reiterated in the case of Prem Nath Bali (Supra), wherein it has been observed by the Supreme Court that every employer should make necessary endeavour to conclude the departmental proceeding within the reasonable time by giving priority to such proceeding which would not be ordinarily be more than a year. However, it appears that no serious attempt had been made by the Department to conclude the Departmental Proceeding within a reasonable time.

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As noticed above, in the instant case, the departmental proceeding has been pending since more than six years and it appears from the projection made by the respondents’ counsel that there is no possibility of concluding the same in near future. On a cumulative assessment of the facts and circumstances of the case, the nature of allegation brought against the writ petitioner, the finding recorded in the Magisterial Enquiry report and the discharge of the writ petitioner in the criminal proceeding, this Court is left with the irresistible conclusion that there is no reasonable basis for the respondent authorities to proceed any further against the writ petitioner. Under the circumstances, this Court is of the opinion that if the departmental proceeding is granted further lease of life, the same would not only cause undue harassment to the petitioner but would also lead to travesty of justice.

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Page No.# 11/11

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For the foregoing reasons, the Memorandum of Charge dated 15/01/2015 as well as

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the departmental proceeding initiated against the writ petitioner is hereby set aside. The petitioner stands exonerated from the charge brought against them.

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The writ petition stands allowed.

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There would be no order as to costs.

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JUDGE

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Sukhamay

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Comparing Assistant

Bate Koyu v. The Arunachal Pradesh Public Service Commission (Appsc) and 3 Ors.

Case brief

What is this about?

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Bate Koyu v. The Arunachal Pradesh Public Service Commission (Appsc) and 3 Ors.

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