Manohar Deka, Afs Vs the State of Assam and 3 Ors.

2:THE SECRETARY TO GOVT. OF ASSAM FINANCE (ESTT - B) DEPTT. DISPUR GHY-6 3:THE SECRETARY TO GOVT. OF ASSAM SOCIAL WELFARE DEPTT. DISPUR GHY-6 4:THE ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GHY-2

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Advocate for the Petitioner : MR. N BORAH, MR H MAZUMDER,N AHMED

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Advocate for the Respondent : GA, ASSAM, SC, FINANCE DEPTT.

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Page No.# 2/9

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BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM

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Date of hearing : 06.03.2025.

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Date of judgment : 06.03.2025.

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JUDGMENT & ORDER (Oral)

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Heard Mr. N. Borah, learned counsel appearing for the writ petitioner. Also heard Mr. R. Borpujari, learned Standing Counsel, Finance Department, Assam appearing for the respondent Nos.1 and 2 and Mr. T. C. Chutia, learned Addl. Sr. Govt. Advocate, Assam appearing for the respondent No.3. None has appeared for the respondent No.4.

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The writ petitioner herein, who was serving as a Financial Advisor to the Administrative Reforms Training Pension and Public Grievance Department (ARTP & PG), Government of Assam, had retired from service on attaining the age of superannuation with effect from 31.01.2023. The grievance of the petitioner is that although he is entitled to receive pension, yet, owing to the pendency of a departmental proceeding against him, his pension has not been finalized till date.

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The facts of the case, in a nutshell, are that while serving as the Financial Adviser, ARTP & PG Department of the Government of Assam, the petitioner was arrested in connection with ACB P.S. Case No.19/2016 registered under Sections 120(B)/468/420/409 of the Indian Penal Code (IPC) read with Sections 123(1)(d)/13(2) of the Prevention of Corruption Act, 1988 on suspicion of financial embezzlement. The

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Page No.# 3/9

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writ petitioner was released on bail granted by this Court on 11.04.2018. However, owing to his arrest and detention in custody, the petitioner was placed under suspension. Subsequently he was reinstated in service and continued in his job till the time of his retirement i.e. 31.01.2023. On 09.08.2021 the Finance (Establishment-B) Department had issued a show-cause notice bearing No.FEB.126/91/291 upon the writ petitioner initiating departmental proceeding against him. The charge brought against the petitioner is reproduced herein below for ready reference :-

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“ Charge 1 - While you are performing your duties as Financial Adviser in Hill Areas Department with additional charge of Sports & Youth Welfare Department you were arrested on 06.02.2018 at about 1:45 PM in connection with ACB P.S. Case No.19/2016 U/S 120(B)/468/420/409 IPC R/W Sec. 13(1) (D)/13(2) PC Act, 1988. As informed by the Superintendent of Police, Vigilance & Anti-Corruption, Assam vide No.DGVA/RI/2017/1757 dtd. 12.05.2017 that you, while serving as Financial Adviser, Social Welfare Department, were allegedly involved in the process of illegally procuring Sewing Machines under IGMSY & allegedly manipulating official documents to cover up the illegalities. Further, as reported by Superintendent of Police, Vigilance & Anti-Corruption, Assam that you, while serving as Financial Adviser in Social Welfare Department, was a member of State Level Purchase Committee of Social Welfare Department and was responsible for looking after financial aspects in the department and had the collective responsibility in the illegal quotation process and finalizing/selecting firms at high rates without following Govt. guidelines.

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You are, therefore, charged with gross violation of Norms & Guidelines of the Centrally Sponsored Scheme in IGMSY and other instruction and procedure of the Government of India as well as Government of Assam which amounts to insubordination, misappropriation of Govt. money and serious misconduct on your part.”

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Page No.# 4/9

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On receipt of the show-cause notice the petitioner had approached the authorities seeking copies of the documents. However, since the copies of the relevant documents could not be furnished to the petitioner by the disciplinary authority, the petitioner could not submit his show-cause reply. As such, there was no further progress in the departmental proceeding since the issuance of the showcause notice dated 09.08.2021. However, as has been noted herein above, the petitioner has, in the meantime, retired from service on attaining the age of superannuation. Till date, the petitioner is drawing provisional pension since his pension has not been finalized on account of pendency of the departmental proceeding.

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Mr. Borah, learned counsel for the petitioner submits that this is a clear case of inordinate delay in concluding the departmental proceeding without any just explanation. Therefore, in order to avoid any further prejudice being caused to the writ petitioner and for ends of justice the departmental proceeding be quashed on the ground of delay and a direction be issued to the authorities to finalise the pension of the petitioner. In support of his above argument Mr. Borah has invited the attention of this Court to Rule 21(c) of the Assam Services (Pension) Rules, 1961 to submit that the question of instituting any judicial proceeding against the petitioner after retirement also does not arise in the facts of this case.

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By relying upon and referring to a judgment delivered by this Court in the case of Rajat Subhra Bhattacharjee Vs. State of Assam and others reported in 2023 SCC

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OnLine Gau 1686 Mr. Borah submits that in a similar case involving another Financial

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Advisor in the same transaction this Court has interfered with the departmental proceeding and directed the authorities to finalise the pension of the petitioner therein. Mr. Borah submits that the writ petitioner was not even a member of the Purchase Committee against which allegations of financial irregularities have been brought about inasmuch as there is not even an iota of evidene to support the said assertion. Notwithstanding the same, merely by adopting a dilatory tactics the departmental authorities are refusing to finalise the pension of the petitioner thus, subjecting him to irreparable loss and injury. By relying on a decision of the Supreme Court rendered in the case of State of A.P. Vs. N. Radhakishan reported in (1998) 4 SCC 154 Mr. Borah has argued that inordinate and unexplained delay in concluding a departmental proceeding can be a valid ground to set aside the same.

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Mr. R. Borpujari, learned Standing Counsel, Finance Department, Assam appearing for the respondent Nos.1 and 2, on the other hand, submits that the department would have proceeded and concluded the departmental proceeding initiated against the writ petitioner long back. However, since the allegation has interdepartmental bearing and considering the fact that the purchases were made under the supervision of the administrative department which is the Social Welfare Department (at present Department of Social Justice), hence, in the absence of the relevant documents being transmitted by the Department of Social Justice, the Finance Department would not be in a position to conduct and conclude the departmental proceeding. Mr. Borpujari has, however, submitted, in his usual fairness, that the reason for delay in concluding the departmental proceeding is not attributable to the writ petitioner and therefore, his pension cannot be withheld

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indefinitely on such ground.

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Mr. T. C. Chutia, learned Additional Senior Govt. Advocate, Assam has also admitted that due to non-transmission of relevant records by the Social Justice Department, the matter has been held up. He, therefore, seeks a direction from this Court to expedite the departmental proceeding so as to bring it to its logical conclusion without any undue delay.

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After going through the materials available on record and on consideration of the submissions made at the Bar, I find that the departmental proceeding initiated against the writ petitioner vide show-cause notice dated 09.08.2021 has not made any progress over the last 3 ½ years or so for reasons which are not at all attributable to the writ petitioner. In the counter-affidavit filed by the respondent No.2 i.e. the Secretary to the Government of Assam, Finance (Establishment-B) Department, it has been categorically mentioned in paragraph 15 that due to non-receipt of relevant documents from the Social Welfare and Home & Political Department there has been delay in concluding the departmental proceeding. Since the Social Welfare Department (now Social Justice Department) as well as the Home Department are part and parcel of the different establishments functioning under the Government of Assam, it is not understood as to why the higher authorities could not have interfered in the matter so as to facilitate expeditious transmission of the records by one department to another. If the departmental authorities are indeed serious about pursuing the charge against the petitioner, it was incumbent upon the superior concerned authority to intervene in the matter and expedite the process of

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transmission of the records so as to conclude the departmental proceeding without any further delay. There is nothing on record to show that any such effort has been made on behalf of the departmental authorities. Be that as it may, there is a serious allegation brought against the petitioner. He has, however, denied such allegation in strong words by contending that he had nothing to do with the Purchase Committee at any point of time. This aspect of the matter definitely requires consideration by the authorities and if found to be true, could also be a justifiable ground for the authorities to exonerate the petitioner. Therefore, there can be no doubt about the fact that the departmental proceeding initiated against the petitioner deserves expeditious conclusion.

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In the case of N. Radhakishan ( supra ) the Hon’ble Supreme Court has categorically observed that while it is not possible to lay down any predetermined principles applicable to all cases and in all situations pertaining to delay in concluding the disciplinary proceeding, the approach to be adopted in each case would depend upon the facts and circumstances of the case as well as the explanation for the delay. The Court is also to consider if there is abnormal delay without just explanation.

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When it is a case of abnormal delay in concluding the departmental proceeding without just explanation thus causing serious prejudice to the interest of the delinquent, it may be a fit case to terminate the departmental proceeding itself. However, having regard to the facts and circumstances of the present case, this Court is of the opinion that although there has been some delay in concluding the

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departmental proceeding, it cannot be treated as a case of unexplained and abnormal delay in concluding the departmental proceeding. At the same time, this Court cannot be wholly oblivious of the suffering of the petitioner due to nonfinalisation of his pension on the ground of delay in the departmental proceeding. Therefore, although this Court is of the opinion that this is not a case for terminating the departmental proceeding merely on the ground of delay, it cannot also be said that no prejudice has been caused to the petitioner due to the delay in conclusion of the departmental proceeding.

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In the case of Rajat Subhra Bhattacharjee ( supra ) relied upon by Mr. Borah, the departmental proceeding initiated against the writ petitioner therein was clearly barred under Rule 21(b)(i)(ii) & (iii) as well as (c) of the Assam Pension Rules inasmuch as the proceeding was initiated against the petitioner after his retirement pertaining to an incident that took place nearly 7 years prior to his retirement. Since such a recourse was impermissible under the Rules, the writ court had interfered in the matter by allowing the writ petition with a direction to release the retirement dues of the writ petitioner.

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In the present case, the departmental proceeding drawn against the petitioner was initiated while he was in service. Therefore, the provisions of Rule 21(b) (i)(ii) and (iii) as well as (c) of the Assam Pension Rules would not be attracted. In view of the above, the ratio laid down in the case of Rajat Subhra Bhattacharjee ( supra ), in the opinion of this Court, would not be attracted to the facts and circumstances of this case. Be that as it may, the writ petitioner, in the opinion of this Court, is at least

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entitled to the relief of expeditious disposal of the departmental proceeding.

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This writ petition is, therefore, being disposed of by directing the respondents to conduct and conclude the departmental proceeding within a period of four months i.e. 120 days from the date of receipt of a certified copy of this order. Facilitating the above, the concerned departments to transmit the relevant records as expeditiously as possible. It is made clear that if for any reason whatsoever, the departmental proceeding is not concluded within the timeline provided by this order, the respondents shall finalise the pension of the petitioner without four weeks thereafter and release all his outstanding dues. Such a measure would, however, be subject to the outcome of the departmental/judicial proceeding, if any, pending/initiated against the petitioner in accordance with law.

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The parties to bear their own cost.

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JUDGE

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T U Choudhury/Sr.PS

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Comparing Assistant

Manohar Deka, Afs v. the State of Assam and 3 Ors.

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Manohar Deka, Afs v. the State of Assam and 3 Ors.

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