Allowed

Mayuri Hazarika v. State of Assam and Ors.

Gauhati HC1 Sept 2022WP(C)/7093/2016

Case brief

AI extract

What is this about?

The Gauhati High Court quashed a Show Cause Notice and subsequent notifications reviving a departmental inquiry initiated nearly 36 years prior, held no progress possible due to missing files, and directed finalization of petitioner's pension within two months.

What did the court decide?

Show Cause Notice dated 05.02.96 (Note 1) and Notifications dated 26.10.2016 set aside/quashed; respondents directed to finalize petitioner's pension within two months.

Mayuri Hazarika Vs State of Assam and Ors. — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010122202016

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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)/7093/2016

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MAYURI HAZARIKA

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W/O PANKAJ KUMAR HAZARIKA BHARASHA BRIDDHABASH, KAILASHNAGAR BHABANIPUR, NOONMATI GUWAHATI, KAMRUP M, ASSAM.

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VERSUS

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STATE OF ASSAM and ORS.

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REP. BY THE THE SECRETARY TO THE GOVT. OF ASSAM, EDUCATION SECONDARY DEPARTMENT, DISPUR, GUWAHATI - 781006.

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Advocate for the Petitioner : MR.M K CHOUDHURY

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Advocate for the Respondent :

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Linked Case : WP(C)/4032/2015

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MAYURI HAZARIKA W/O PANKAJ KUMAR HAZARIKA BHARASHA BRIDDHABASH KAILASHNAGAR BHABANIPUR NOONMATI GUWAHATI KAMRUP METRO ASSAM

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VERSUS THE STATE OF ASSAM AND 3 ORS REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM EDUCATION SECO DEPTT. DISPUR GHY-6 2:THE DIRECTOR OF NON-FORMAL and ADULT EDUCATION KAHILIPARA GHY3:THE ASSTT. DIRECTOR STATE RESOURCE CENTRE FOR ADULT EDUCATION R.G.BARUA ROAD UDAY PATH GHY-24 4:THE ACCOUNTANT GENERAL ASSAM MAIDAMGAON BELTOLA GUWAHATI -----------Advocate for : MR.A BARKATAKI Advocate for : MR. R K TALUKDAR (R-4) appearing for THE STATE OF ASSAM AND 3 ORS

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BEFORE HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR

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ORDER

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Date : 01.09.2022

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Heard Mr. M.Sarma, learned counsel for the petitioner. As well as Mr. B. Kaushik, learned standing counsel, Secondary Education for all the respondents in WP(C)/7093/2016 and for the respondent Nos. 1, 2 and 3 in WP(C)/4032/2015. Mr. R.K. Talukdar, learned standing counsel for respondent No.4 in WP(C)/4032/2015.

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As both the writ petitions have the same cause of action and the reliefs sought for being identical, they are disposed of by this common order.

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The petitioner was initially appointed on temporary basis under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951 as Research Officer in the State Resource Centre for a period of 4(four) months w.e.f the date of joining, by Notification dated 16.03.1985. Thereafter, service of the petitioner was confirmed as Research Officer of State Resource Centre, Guwahati by a Notification dated 27.12.1989.

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While the petitioner was serving as such, she was served with a Show Cause Notice on 05.02.1996, issued by the Commissioner and Secretary to the Government of Assam, Education Department, on the ground that while entering into Government Service as Research Officer, S.R.C, she had submitted Scheduled Caste Certificate in support of her candidature and accordingly, she was nominated for appointment as SC candidate. However on perusal of records and after verification of records from the appropriate authority, it was ascertained that she did not belong to the Scheduled Caste Community. On that ground, the aforesaid Show Cause Notice was issued.

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The petitioner replied to the Show Cause Notice by filing written statement on 15.02.1996. Thereafter, the Under Secretary, Education Department, Government of Assam, by a communication dated 14.05.1996 directed the petitioner to appear before the Joint Secretary to the Government of Assam, Education Department in his Office chamber on 20.05.1996 for hearing on the Departmental proceeding drawn against her. Petitioner in terms of the direction contained in the letter dated 14.05.1996, appeared before the said Officer on

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the fixed date. However, as there was no sign of any progress, she made a representation before the Commissioner to the Government of Assam, Education Department on 03.02.1997, requesting to let her know the position of the Departmental proceeding. As nothing happened, petitioner filed an RTI application and in reply to her application, she was informed by a communication dated 30.05.2011 about the proceedings of the Departmental inquiry and the relevant portion is extracted hereunder:

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“The discussion was held in presence of the Assistant Director, NF&AE, and in presence of Smti. Mayuri Hazarika,

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Complainant stated that Smti. Mayuri Hazarika originally belongs to general category (community) but due to her marriage with a person of SC community she has been getting benefit as a SC candidate for appointment/promotion in the Govt. service.

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Smti. Mayuri Hazarika has informed that’s he neither getting promotion nor claims for promotion on the basis of her SC certificate. She is not aware of the present status of DP. Also informs that she does not intend to get promotion against S.C. quota.

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The Deptt. Informs that the concerned file was processed originally from Education (Elementary) Deptt. During 1996 which is not traceable even after thorough search. The Director, NF&AE also could not provide any information relating to DP in respect of Smti. Mayuri Hazarika.

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The Deptt. Also pointed out that due to frequent shifting of Education Deptt. Earlier, there are possibilities of missing of files.

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It has been pointed out that the appellant had been given some information earlier vide Govt. letter No.ASE.178/2010/29, dt. 02.07.2010.

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It has been decided that all available information relating to the D.P. be given forthwith to the Appellant.”

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The Director of Non Formal & Adult Education, Assam by a communication

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dated 25.01.2012, addressed to the Secretary to the Government of Assam, Education(S) Department, forwarded some documents submitted by the petitioner related to the Departmental proceedings and also informed that the inquiry report has not yet come. In the said communication, the Director also gave his views as under:

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“Views- As per the Assam Services (Discipline and Appeal) Rules 1964 “decision to complete disciplinary case after a lapse of twelve years was unjust and improper. Therefore, such orders were liable to be quashed.” “K.S. Vohra (Addl) Dy. Inspector General of Border Security Force Vs. The Director General of Border Security Force (1990) 2 Gau-LR 271” copy enclosed.

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Therefore, the Govt. may be requested kindly to consider the D.P. against Smti. Mayuri Hazarika which was done more than 15 years back for disposing he matte at an early date, as she is going to be retired in 2013.”

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In the mean time, petitioner superannuated from service on 31.12.2013. Nearly 3(three) years after her superannuation, the Secretary to the Government of Assam, Secondary Education Department, issued a Notification dated 26.10.2016, appointing one Joint Secretary to the Government of Assam, Education Department as the Inquiring Officer to enquire into the charges against the petitioner. By another Notification dated 26.10.2016, the Secretary to the Government of Assam, Secondary Education Department, appointed the Under Secretary to the Government of Assam, Education (Secondary) Department as the Presenting Officer to present the case in support of the charge against the petitioner. Accordingly, the Joint Secretary to the Government of Assam, Secondary Education Department by a communication dated 05.11.2016, informed the petitioner that the next dated of hearing was fixed on 22.11.2016 and directed the petitioner to appear before the hearing

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with all relevant records.

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The petitioner approached this Court by filing WP(C)/7093/2016, and this Court by order dated 25.11.2016, stayed both the Notifications dated 26.10.2016. It was also clarified by this Court that the Departmental proceeding against the petitioner would remain stayed.

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Learned counsel for the petitioner submits that the Departmental proceeding against the petitioner was initiated as long back as in the year 1996, and till date nothing has been finalized. It is also submitted that as per the information received from the RTI application, no proceeding of the Departmental proceeding could be initiated due to non-traceable of the concerned file.

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Further submission is made that the petitioner despite being superannuated on 31.12.2013, is only being paid her provisional pension due to the fact that the Departmental proceeding against her is still pending.

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No counter affidavit has been filed by the respondents in both the writ petitions, however, Mr. B. Kaushik, learned standing counsel, Secondary Education submits that the interim order may be vacated and a fixed period of time may be allowed to the respondents to complete the Departmental proceeding.

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This Court has considered the Show Cause Notice given to the petitioner on 05.02.1996. From a perusal of records, it appears that apart from the

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appointment of the Inquiring Officer by the Notification dated 30.03.1996, no progress was made. The reason for non-progression of the Departmental proceeding is indicated by the reply made to the petitioner on her RTI application which indicates that the respondents are not able to trace the concerned file. It is now nearly 36 years after the Show Cause Notice dated 05.02.1996, was served and till date nothing has happened. It is also seen that the respondents again tried to revive the Departmental proceeding after about 3 years after the petitioner retired from service on 31.12.2013, by the 2(two) Notifications, both dated 26.10.2016, whereby, the Inquiring Officer and the Presenting Officer were appointed respectively. Thereafter, due to the interim order passed by this Court, no proceedings have taken place.

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Respondents are unable to show this Court the reason why the Departmental proceeding has not been completed after the Show Cause Notice dated 05.02.1996, was issued to the petitioner except the RTI reply made to the petitioner. The reasons for initiation of Departmental proceeding against the petitioner has been noticed by this Court. This Court is not making any observations for the reason which led to the initiation of the Departmental inquiry at this stage. However, this Court cannot stand as a silent spectator with regard to the delay in concluding the Departmental Inquiry.

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The petitioner has been harassed for a very long period of time. It is trite that Departmental proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. However, they cannot be allowed to continue after a lapse of considerable time. It would not be fair for the delinquent officer and such delay also makes the task of proving the charges difficult, which is also not in the interest of the administration. If the

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delay is too long and unexplained, the Court would have no other option but to interfere and quash the charges. In the present case, after the issuance of the Show Cause Notice on 05.02.19096 nothing has happened for past about 36 years and therefore, this Court cannot allow the Departmental proceeding to proceed any further.

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Accordingly, the Show Cause Notice dated 05.02.1996, the 2(two) Notifications both dated 26.10.2016 are set aside and quashed. The respondents are directed to finalize the pension of the petitioner at the earliest but not later than 2(two) months from the date of receipt of a copy of the order of this Court.

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Both writ petitions are accordingly allowed.

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No Costs.

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JUDGE

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Comparing Assistant

Mayuri Hazarika v. State of Assam and Ors.

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Mayuri Hazarika v. State of Assam and Ors.

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