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High Court upholds Rules of 1967 and principle of natural justice

Nagaland News

Quashes Govt order to withhold/withdraw salaries, etc. of top Fisheries Dept official

DIMAPUR, FEBRUARY 25: The Kohima Bench of Gauhati High Court on Friday set aside and quashed Nagaland Government’s orders to withhold/withdraw the salaries as well as the vehicle and the driver of a top ranking official of the Fisheries Department.
In his ruling, Justice Devashis Baruah said that the order issued on December 20, 2019 by the Chief Secretary ~ for recovery of the entire salary drawn by the Additional Secretary of Fisheries and Aquatic Resources, Y Dengan Avennoho Phom during his alleged period of absence ~ was not only in clear violation of the Rules of 1967 but also the principle of natural justice.
Then, Baruah referred to the two other orders: withholding of salary and withdrawal of attached vehicle and driver issued on October 10, 2019; and according of the ex-post facto sanction for commuted leave for a period of 45 days on medical ground on December 5, 2019.
“A perusal of the various penalties as stipulated in Rule 7 of the Rules of 1967 would show that the penalties so imposed, vide the impugned communications dated October 10, 2019 as well as the order dated December 5, 2019, are foreign to the said Rules of 1967”, he said.
Baruah then cited a ruling given by the Supreme Court in the case of Vijay Singh Vs the State of UP in 2012 and said the apex Court’s judgement had shown that the disciplinary authority is bound to give strict adherence to the Rules and the order of punishment imposed outside the purview of the statutory Rules is a nullity and cannot be enforced against the petitioner.
Consequently, he set aside and quashed the orders.
However, he said that if the Government desires to initiate any disciplinary proceedings against the petitioner, it may be done in consonance with Rule 9 of the Rules of 1967.
History of the case
As per Court document, the petitioner was transferred as Joint Secretary of Fisheries and Aquatic Resources in December 2017 while serving as the Deputy Commissioner of Longleng.
But when he reported for duty on December 14, 2017, “there was no office room with basic amenities, such as tables and chairs, made available for his dispensation”.
“The petitioner further contends that he had reported the same to the various authorities including the Nazareth Branch of the Home Department, Government of Nagaland, and more specifically to the Deputy Secretary in the Nazareth Branch of the Home Department.
“However, in spite of the various requests made by the petitioner, the Department concerned could not facilitate any arrangement to even temporarily accommodate the petitioner. The petitioner further states that an extension was made to facilitate an office room in his Department; however, the same was allotted to an Under Secretary”, the order stated.
And while he was undergoing those problems, the petitioner was accorded officiating promotion from Selection Grade to Higher Selection Grade and “had been serving as the Additional Secretary in the Department without any office”, it added.
However, on October 10, 2019, he received a show-cause notice from the State Government alleging that he had not been attending office, since joining the Department, without obtaining leave; and it directed him to reply why disciplinary proceedings should not be initiated against him.
On the same day, the Joint Secretary of P&AR Department issued two letters: one to the Special Officer (Accounts), Bill & Cash Branch, to withhold the salary of the petitioner because of his absence from office for a long period without obtaining leave from the competent authority; and another to the Secretary of Transport Department, asking him to withdraw the vehicle and driver attached to the petitioner.
On October 15, 2019, the petitioner responded to the notice stating that he had joined for duty on December 14, 2017 but till the date of his submitting the reply, the Home Department did not allot him a working room with proper office tables and chairs at Nagaland Civil Secretariat.
“He further mentioned that he had requested several times to the Home Department but no action has been taken. It was, however, mentioned that from the date of joining, the petitioner had come to the office every month and every week even though there is no room provided. The petitioner further said that if the Home Department had allotted the proper official room with basic furniture, he would definitely perform his duty with commitment and sincerity”, the order read, adding that the petitioner had subsequently requested to revoke the show-cause notice.
But to his surprise, the Joint Secretary of P&AR issued an order on December 5, 2019, according the petitioner ex-post facto sanction for commuted leave spanning for a period of 45 days on medical ground.
Then, on December 20, 2019, the Chief Secretary issued an order rejecting the petitioner’s response to the show-cause notice on the ground that non-allotment of room cannot be an excuse for absence from official duty for such a long period.
Accordingly, “on the violation of Rule 4 (1)(i), (ii) and (iii) of The Conduct Rules and in exercise of the powers conferred under sub-rule (iii) of Rule 7 of The Rules of 1967”, the recovery of the entire salary drawn by the petitioner during the period of his “unauthorised leave” ~ from December 15, 2017 to April 1, 2018 and from May 17, 2018 to October 15, 2019 ~ not exceeding 30% of the total emoluments received by him in a month ~ was directed with immediate effect.
(Page News Service)