Allowed

Dusyanta Sarma Das v. the State of Assam and 2 Ors.

Gauhati HC8 Mar 2022WP(C)/2933/2016

Case brief

AI extract

What is this about?

The Gauhati High Court quashed an order cancelling the petitioner's temporary government appointment, holding that the department violated principles of natural justice by failing to issue a notice or provide an opportunity of hearing before issuing the cancellation order.

What did the court decide?

The impugned letter No. HTS.98/2016/79 dated 05/05/2016 cancelling the petitioner's appointment is quashed and set aside.

Dusyanta Sarma Das Vs the State of Assam and… — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No.# 1/8

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GAHC010015742016

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

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Case No. : WP(C)/2933/2016

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DUSYANTA SARMA DAS

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S/O LT. LOKHESWAR DAS, R/O JOGONIA GAON, P.O. GANAK PHUKURI, P.S. DERGAON, DIST- GOLAGHAT, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 2 ORS REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM, HANDLOOM TEXTILE and SERICULTURE DEPTT., KHANAPARA, GHY-22, ASSAM

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2:THE JT. SECY. HANDLOOM TEXTILES and SERICULTURE DEPTT. DISPUR GHY-6 3:THE DIRECTOR DEPTT. OF SERICULUTE GOVT. OF ASSAM KHANAPARA GHY-2

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Advocate for the Petitioner : MR.M BISWAS

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Advocate for the Respondent : GA, ASSAM

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Page No.# 2/8

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BEFORE HONOURABLE MR. JUSTICE K. SEMA

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Date : 08-03-2022

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JUDGMENT & ORDER (CAV)

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Heard Mr. M. Biswas, learned counsel for the petitioner and Mr. R. Dhar, learned Government Advocate appearing for State respondents.

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2. The writ petition has been filed by the petitioner challenging the letter No. HTS.98/2016/79, dated 05/05/2016, issued by the Joint Secretary to the Government of Assam, Handloom Textiles & Sericulture, Dispur, Guwahati to the Director of Sericulture, Assam Khanapara, Guwahati which inter-alia has conveyed as follows; “ As regards Shri. Dusyanta Sarma Das newly appointed Junior Assistant in the Office of Superintendent of Sericulture, Golaghat, I am directed to request you to treat his appointment as cancelled .”

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3. It is the case of the petitioner that vide order No. SOP.101/2013/215/3192, dated 31/12/2015, issued by the Director, Sericulture, Assam, Khanapara, Guwahati, the petitioner was temporally appointed as Grade-II (Junior Assistant) in the District & Sub-divisional Level Office under the Directorate of Sericulture, Assam and posted under the Superintendent of Sericulture, Golaghat. The appointment was to be made subject to satisfactory Police verification report and production of medical fitness certificate. The petitioner submitted his joining report on 02/01/2016.

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4. Mr. M. Biswas, learned counsel for the petitioner submits that it was sometime in the first week of March, 2016 that the petitioner received the summon dated 11/02/2016 from the Court of learned Judicial Magistrate 1^st Class, Golaghat, Assam requiring the petitioner to appear before the Court and answer charges under section 448/354/294/323/34 IPC and it was only then that the petitioner for the first time came to know about the pendency of the said criminal case against him. Consequent to the summon, the petitioner appeared before the Court and secured bail and it was during which the petitioner also came to learn about the FIR dated 27/03/2015 which was filed against the petitioner and his relatives by some close relations over a family dispute. Mr. M. Biswas submits that pursuant to the registration

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Page No.# 3/8

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of the criminal case neither the petitioner nor his relatives were at any point of time summoned by the Police for investigation and this being so, the petitioner was not aware about the case registered against him. In support of his submission, the learned counsel has taken this Court to the lower court’s record of G.R case No. 572/2015 which was called for by this Court on 14/12/2021.

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5. The learned counsel for the petitioner further submits that the petitioner on reliably coming to learn that, in view of the pending case, the Police have forwarded an adverse Police Verification Report (PVR) to the department, the petitioner through his counsel filed the application dated 10/04/2016 under the RTI 2005 seeking inter departmental communications with regard to the service of the petitioner for the period 2015-16. In reply to the application, the petitioner was furnished with the impugned letter dated 05/05/2016 by the State Public Information Officer, Sericulture, Assam.

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6. Mr. M. Biswas, learned counsel for the petitioner attacks the impugned letter dated 05/05/2016 primarily on two grounds, firstly that no notice was issued to the petitioner before issuing the impugned letter cancelling the appointment of the petitioner thereby causing prejudice to the petitioner and secondly, that when the petitioner had no knowledge of the pending criminal case against him the department could not have issued the impugned order on the assumption that the criminal case was concealed by the petitioner while applying for the post. Mr. M. Biswas also submits that the impugned order could not have been passed by the department merely on the ground that the order appointing the petitioner stipulated a condition that the appointment of the petitioner will be subject to satisfactory police verification report.

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7. In support of his submission, the learned counsel for the petitioner has relied on the judgment & order dated 15/02/2008 passed by this Court in W.P(C) No. 936 of 2002 to bring home the point that in the absence of any evidence to show that the petitioner was having any personal knowledge about the pendency of the criminal case, it could not be considered sufficient to conclude that the petitioner concealed or suppressed the fact of the pendency of the criminal case against him. The judgment & order dated 15/02/2008 in appeal by the Union of India was dismissed.

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Page No.# 4/8

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8. Mr. R. Dhar, learned Government Advocate for the State respondents submits that the appointment of the petitioner was wrongly made by the Director before obtaining the Police verification report as contained in the order dated 31/12/2015 and therefore, the Director has been asked to furnish explanation as to why the petitioner was appointed in violation of the order dated 31/12/2015. It is also submitted that since the appointment of the petitioner was subject to the Police verification report, the petitioner service can be terminated even subsequently upon receiving the said report. Mr. R. Dhar further submits that the Director of Sericulture on receiving the Police Verification Report sought the view of the Government and only thereafter, on the advice of the Government the appointment of the petitioner was cancelled. Mr. R. Dhar however fairly submits that the respondents authorities had issued the impugned letter dated 05/05/2016 only on the basis of the summon issued by the learned Judicial Magistrate and the subsequent Police Verification Report and no notice was issued to the petitioner before issuing the letter dated 05/05/2016 cancelling the appointment of the petitioner.

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9. I have heard the learned counsel for the parties and perused the pleadings filed by the petitioner as well as by the respondent No. 1 & 3.

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10. On the issue as to whether the petitioner had concealed the pending criminal case to secure his appointment, this Court has carefully perused the lower court record in G.R Case No. 57/2015 and ascertained that the petitioner was at no point of time summoned or questioned by the Police for investigation. This Court is therefore inclined to accept the submission made by the learned counsel for the petitioner that the petitioner had no knowledge of the criminal case pending against him while applying for the appointment with the department and the petitioner came to know of the same only after the summon was issued by the learned Judicial Magistrate 1^st Class, Golaghat. This Court is also in respectful agreement with the judgment & order dated 15/02/2008 passed by the Co-ordinate Bench of this Court in W.P.(C) No. 936/2002 holding that in the absence of any evidence to show that the petitioner was having personal knowledge about the pendency of criminal case, the mere fact that the petitioner had failed to answer the question, cannot be considered sufficient to conclude that the petitioner concealed or suppressed the fact of the pending criminal case against him. The judgment of the learned co-ordinate Bench has been upheld by the Hon’ble

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Page No.# 5/8

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Division Bench in W.A No. 384/2008 by the judgment & order dated 13/03/2009.

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11. On the second question as to whether the respondents authorities could have issued the impugned letter dated 05/05/2016 cancelling the appointment of the petitioner, without any notice, solely on the ground that the appointment of the petitioner was subject to the police verification report. The answer is an emphatic No. The petitioner was appointed by the order dated 31/12/2015 issued by the Director, Sericulture, Assam, subject to satisfactory police verification report. However before any police verification was conducted the petitioner was allowed to join his service. From the order dated 31/12/2015, it is also seen that the petitioner’s appointment was made by the Government pursuant to the recommendation of the selection committee. Since the respondent authorities had, rightly or wrongly, allowed the petitioner to join his service consequent to the order dated 31/12/2015, the respondent authorities, in the considered opinion of this Court, could not have issued the impugned order dated 05/05/2016 cancelling the appointment of the petitioner without affording any reasonable opportunity of being heard. Even otherwise, a bare perusal of the letter dated 05/05/2016 does not disclose any reason as to why the appointment of the petitioner was sought to be cancelled. Since the impugned letter dated 05/05/2016 had serious adverse repercussions on the appointment and the service of the petitioner, it was incumbent on the respondents to have issued notice to the petitioner furnishing the ground on which the appointment of the petitioner was sought to be cancelled. This mandatory recourse not having been taken by the respondent authorities, the impugned letter dated 05/05/2016, issued by the Joint Secretary to the Government of Assam, Handloom Textiles & Sericulture Department to the extent “ As regards Shri. Dusyanta Sarma Das newly appointed Junior Assistant in the Office of Superintendent of Sericulture, Golaghat, I am directed to request you to treat his appointment as cancelled ” in the considered opinion of this Court cannot stand the scrutiny of law and is liable to be struck down as void and illegal.

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12. The Hon’ble Supreme Court in the case of Canara Bank & Others -versus- Debasis Das & Others , reported in (2003) 4 SCC 557 has held that;

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“ 15. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and

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Page No.# 6/8

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foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works² the principle was thus stated: (ER p.420)

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"Even God himself did not pass a sentence upon Adam, before he was called upon to make his defence. ‘Adam’ (says God), ‘where art thou has thou? Hast thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat?’ “

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Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.

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16. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

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19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.”

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Page No.# 7/8

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13. In the case of Haryana Financial Corporation & Another -versus- Kailash Chandra Ahuja , reported in (2008) 9 SCC 31 has held that;

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31. At the same time, however, effect of violation of the rule of audi alteram partem has to be considered. Even if hearing is not afforded to the person who is sought to be affected or penalized, can it not be argued that “notice would have served no purpose" or "hearing could not have made difference" or "the person could not have offered any defence whatsoever". In this connection, it is interesting to note that under the English Law, it was held few years before that non-compliance with principles of natural justice would make the order null and void and no further inquiry was necessary.

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32. In the celebrated decision of Ridge v. Baldwin¹² it was contended that an opportunity of hearing to the delinquent would have served no purpose. Negativing the contention, however, Lord Reid stated; (All ER p. 73 F-G)

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"It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse".

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(emphasis supplied)

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34. This Court expressed the same opinion. In Board of High School v. Chitra Srivastava¹³ , the Board cancelled the examination of the petitioner who had actually appeared at the examination on the ground that there was shortage in attendance at lectures. Admittedly, no notice was given to her before taking the action. On behalf of the Board it was contended that the facts were not in dispute and therefore, `no useful purpose would have been served' by giving a show cause notice to the petitioner. This Court, however, set aside the decision of the Board, holding that the Board was acting in a quasi-judicial capacity and, therefore, it ought to have observed the principles of natural justice.

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36. The recent trend, however, is of `prejudice'. Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant.

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38. In Jankinath Sarangi v. State of Orissa¹⁶ , it was contended that natural justice was violated inasmuch as the petitioner was not allowed to lead evidence and the material gathered behind his back was used in determining his guilt. Dealing with the contention, the Court stated: (SCC p. 394, para 5)

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"5……We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right".

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Page No.# 8/8

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(emphasis supplied)

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42. Recently, in P.D. Agrawal v. SBI²³ this Court restated the principles of natural justice and indicated that they are flexible and in the recent times, they had undergone a `sea change'. If there is no prejudice to the employee, an action cannot be set aside merely on the ground that no hearing was afforded before taking a decision by the authority.”

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14. The instant case is one were the principle of natural justice was violated causing serious prejudice to the petitioner.

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15. In the light of the discussions made above, this Court is of the view that the letter No. HTS.98/2016/79, dated 05/05/2016, issued by the Joint Secretary to the Government of Assam, Handloom Textiles & Sericulture Department to the extent of cancelling the appointment of the petitioner is bad in law and accordingly, quashed and set aside. The respondent authorities, if so advised, may initiate necessary action, if any, against the petitioner in accordance with law.

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16. The writ petition is allowed to the extent indicated above. No order as to cost.

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17. Send back the LCR forthwith.

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JUDGE

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Comparing Assistant

Dusyanta Sarma Das v. the State of Assam and 2 Ors.

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Dusyanta Sarma Das v. the State of Assam and 2 Ors.

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