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CASE NO.: Appeal (civil)  3246 of 2005

PETITIONER: Muklesh Ali

RESPONDENT: State of Assam & Anr.

DATE OF JUDGMENT: 04/07/2006

BENCH: Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT: J U D G M E N T

Dr. AR. Lakshmanan, J.

The appellant, Muklesh Ali, was working as Assistant  Conservator of Forest, State of  Assam, North Kamrup Division,  filed the above appeal against the final judgment and  order  dated 5.5.2004 passed by the Gauhati High Court in Writ Appeal  No. 133 of 2003 whereby the High Court dismissed the writ  appeal filed by the appellant herein. BACKGROUND FACTS: The appellant while serving as Assistant Conservator of  Forest in the year 1994 in the North Kamrup Division, Rangia   respondent No.2, namely, The Secretary to the Government of  Assam, Forest Department, by Notification dated 16.9.1994  placed him under suspension.  By Notification dated  12.12.1994, the appellant was reinstated in his service.   On  29.7.1997, the appellant was served with a memo to show cause  containing as many as five charges along with the statement of  allegations and list of documents and a list of witnesses giving  ten days’  time for filing written statement.  The five charges  against the appellant reads as under: "Charge No.1 :  Connivance in illegalities for  your personal gain causing colossal loss of revenue  to the State Government exchequer.

Charge No.2 :  Fraudulent issue of Transit  Pass, connivance in illegality for personal gain.

Charge No.3 :  Criminal misconduct, breach of  trust, connivance in illegalities for personal gain.

Charge No.4  :  Criminal breach of trust.

Charge No.5 :  Gross dereliction and willful  negligence of duties, misuse of power for personal  gain."

The appellant submitted his written statement as well as  additional written statement in his defence. This Court, vide its order dated 15.1.1998, in Writ Petition  (C) No. 202 of 1985  titled T.N. Godavarman Thirumalpad vs.  Union of India passed a detailed order.  In paragraph 27 of the  said order,   directions were issued to the State Government to  identify within 45 days all those forest divisions where  significant illegal felling of trees have taken place and initiate  disciplinary/criminal proceedings against those found  responsible.  The States were further directed to submit First

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Action Taken Report in that regard to the Central Government  within three months which were to be followed by Quarterly  reports till the culmination of the matter.   Paragraph 27 of the  said order reads as under: "27.  The State Government shall identify  within 45 days all those forest divisions where  significant illegal fellings have taken place and  initiate disciplinary/criminal proceedings against  those found responsible.  The first action taken  report (ATR) in this regard shall be submitted to the  Central Government within three months which  shall be followed by quarterly reports(Qrs) till the  culmination of the matter."   

The Enquiry Officer, after concluding the enquiry,  submitted his Report along with enclosures wherein it was found  that the appellant was not guilty of the alleged offence.  The  report was submitted on 25.4.2000.  On 1.11.2000, proceedings  against the appellant were dropped with order directing that the  suspension period of the appellant from 16.9.1994 to  12.12.1994  be treated as on duty. This Court again vide its order dated 12.5.2001 in W.P.(C)  No. 202 of 1995 passed certain directions.  In paragraph 12 of  the said order, this Court directed the Chief Secretaries of North  Eastern States to immediately review the action taken against  officials and other found responsible for significant felling of  trees in terms of paragraph 27 of the order dated 15.1.1998.   This Court further directed that an Action Taken Report should  be submitted to this Court through an affidavit by the concerned  Chief Secretaries within 60 days which inter alia should include  their observations about adequacy of this action taken against  the concerned officials.  Paragraph 12 of the order reads as  under: "12.  The Chief Secretaries of North Eastern  States shall immediately review the action taken  against officials and others found responsible for  significant illegal fellings as per para 27 of this  Court’s order dated 15.1.98 and those involved in  movement of illegal timber seized confiscated by the  Special Investigating Team.  Wherever it is found  that the action taken requires to be reviewed, the  concerned State Government shall take appropriate  steps be it in the nature of Departmental  proceedings or criminal proceedings as many as be  necessary to assure this Court that the State are  serious in creating an environment of deterrence  against illegal felling of trees.  The Railways shall  also review the action taken and take corrective  measures required.  An action taken report shall be  submitted to this Court through an affidavit by the  concerned Chief Secretaries within sixty days which  inter alia should include their observations about  adequacy of the action now taken against the  concerned officials.  The proceedings for  confiscation of trucks and other vehicles used for  movement of illegal timber, especially where such  movement has taken place using  fake/tampered/expired transit passes, may also be  reviewed.  Such review shall also be done by the  Chief Secretary while taking half yearly view  meeting as per para 27 of the Court’s order dated  15.1.1998."         

In pursuance of this Court’s aforesaid order dated

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12.5.2001, respondent No.2 by Memo dated 20.10.2001,  directed the appellant to submit written statement as to why the  decision intimated to the appellant vide order No.  FRE.79/98/139 dated 1.11.2000 will not be reviewed asking the  appellant to submit  his written statement within ten days. The appellant challenged the validity and correctness of  notice dated 20.10.2001 by way of filing writ petition before the  learned single Judge of Gauhati High Court and the same was  numbered as W.P.(C) No.8406 of 2001.  The learned single  Judge by his order dated 13.3.2003 dismissed the writ petition.   Aggrieved by the said order, the appellant preferred a writ appeal  before the Division Bench of the High Court and the same was  numbered as W.A. (C) No. 133 of 2003.  Vide its order dated  5.5.2004, the Division Bench dismissed the writ appeal filed by  the appellant.  Aggrieved by the said judgment, the appellant  preferred the above appeal in this Court. We heard Mr. Rana Mukherjee, learned counsel appearing  for the appellant and Mr. Riku Sarma, learned counsel  appearing on behalf of the respondents. At the time of hearing, Mr. Rana Mukherjee drew our  attention to the earlier proceedings initiated against the  appellant under Memo dated 29.7.1997 and the two orders  passed by this Court issuing certain directions on 15.1.1998  &  12.5.2001 in W.P.(C) No. 202 of 1985, annexures filed along with  the writ petition and also in this appeal and the order passed by  the learned single Judge and of the Division Bench.    Mr. Rana Mukherjee, learned counsel appearing for the  appellant, submitted that the orders passed by this Court on  15.1.1998 and 12.5.2001 were prospective in operation and not  retrospective so as to include the case of the appellant for review  of the concluded departmental proceeding in pursuance of the  order dated 15.1.1998 as no action was taken against the  appellant in pursuance of the said order.  He would further  submit that the respondents had no authority or jurisdiction to  re-open the departmental proceedings which  ended in favour of  the appellant being not guilty.  It has never been the case of  respondent No.2 that the reviewing authority suo moto exercised  the power of review under Rule 27 of the Assam Service  (Discipline & Appeal) Rules, 1984, (hereinafter referred to as "the  Rules").  Any such exercise of powers by the authority must be  within the ambit and in terms of this Court’s orders dated  15.1.1998 and 12.5.2001 which this Court never meant to be  retrospective.  Therefore, he submitted that the Division Bench  was not justified in holding that the second show cause notice  dated 20.10.2001 was issued on the basis of the directions of  this Court.  According to the learned counsel, the High Court  was not justified in holding that the respondents have the power  to review under Rule 27 of the Rules particularly, when the  review was sought to be done in pursuance of this Court’s orders  dated 15.1.1998 and 12.5.2001.  Per contra, Mr. Riku Sarma, learned counsel appearing for  the respondents, submitted that the sole objective of the two  orders passed by this Court is to ensure that no guilty official is  let scot-free and this objective has to be achieved by providing  for ’Review Mechanism’, whenever and  wherever the State  Government finds  reasons to find fault with any disciplinary  proceeding or enquiry \026 procedural or substantive and it should  be in the light of this main objective that the said two orders  should be interpreted.  He would further submit that in any case  under Rules 26 and 27 of the Rules, the State Government can  review any order passed or enquiry report submitted,  independent of any order of any Court of law.  Learned counsel  further submitted that the notice dated 20.10.2001 for review of  the Enquiry Report dated April 25, 2000 was without any mala  fide intention nor was the same intended to affect the career of

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the appellant and that the said notice was issued in exercise of  the powers of review given to the Government of Assam by Rules  26 and 27 of the Rules.  We have carefully gone through the entire pleadings,  annexures, impugned judgments of the learned single Judge and  of the Division Bench and all other relevant records. As already noticed, disciplinary proceedings were initiated  against the appellant and he was placed under suspension and  later was reinstated in service.  He was served with a Memo  dated 29.7.1997 to show cause certain charges .  The appellant  submitted his written statement as well as the additional written  statement.  In the meanwhile, this Court issued certain  directions on  15.1.1998.  The Enquiry Officer, after concluding  the enquiry submitted his report wherein it was found that the  appellant is not guilty of the alleged offence.  The proceedings  against the appellant were dropped  on 1.11.2000 with the order  directing that the suspension period of the appellant from  16.9.1994 to 12.12.1994 was to be treated as on duty.  It has  also never been the case of respondent No.2 that the reviewing  authority suo moto exercised the power of review under Rule 27  of the Rules.  Any such exercise of powers by the authority must  be within the ambit and in terms of this Court’s order dated  15.1.1998 and 12.5.2001 which this Court never meant to be  retrospective.  Therefore, we are of the opinion that the second  show cause notice dated 20.10.2000 was issued on the basis of  the directions of this Court.  In other words, the High Court was  not justified in holding that the respondents have power to  review under Rules 26 and 27 of the Rules particularly, when  the review was sought to be done in pursuance of this Court’s  order dated 15.1.1998 and 12.5.2001 mentioned above.  The  High Court, in our view, failed to interpret and judicially  considered the order dated 12.5.2001 passed by this Court in  Writ Petition (C)  No. 202 of 1995 clearly mentioning that the  review should be made by the Chief Secretaries only in respect of  action taken after 15.1.1998 which was a matter of past.  Hence,  in our view, the learned single Judge and the learned Judges of  the  Division Bench completely misinterpreted and misread  paragraphs 27 and 12 of the orders dated 15.1.1998 and  12.5.2001 respectively passed in W.P.(C) No. 202 of 1995 in  coming to the conclusion that the case of the appellant was  covered by the aforesaid two orders of this Court.  The findings  of the High Court, if followed, would create a chaos as it would  mean that by virtue of the aforesaid orders passed by this Court  all departmental proceedings concluded in the past would  become liable to be opened as that would never have been  intended by this Court. According to the learned counsel appearing for the  appellant, the mala fide action of the respondents  in passing  the order dated 20.10.2001 was passed at a time when the  appellant’s promotion to the post of Divisional Forest Officer had  become due and the appellant had been deprived of enjoying his  promotion in view of the purported review of the departmental  proceedings already closed and sought to be reopened under the  garb of orders dated 15.1.1998 and 12.5.2001 passed by this  Court which are only prospective in operation.  We find merit  and substance in this contention. This Court also did not intend to give retrospective  operation of the two orders passed by it referred to in  paragraphs supra and, therefore, the adequacy of  the action  taken cannot be a reason for reopening the concluded issue.   This Court’s directions were not intended to allow the State  Government to reopen all or any proceeding  which was logically  concluded by accepting the enquiry report in which the State- respondents gave warning just cautioning to be careful in future  as no direct guilt or wrong was attributed to the appellant by the

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enquiry officer.  Hence, in our view, the order dated 1.11.2000  dropping the proceedings by the Government cannot be termed  as letting the appellant off for any reason or any account of any  laxity or lapse in the enquiry proceedings. This apart, the alleged offence of dereliction of duty was not  found to be willful and, therefore, proceeding was dropped by  accepting the enquiry report ended in favour of the appellant  being not guilty.   The plea as to their exercise of review power under Rules  26 and 27 of the Rules was not taken either before the learned  single Judge or before the Division Bench of the Gauhati High  Court.  Further no written plea or any oral argument was  advanced in this regard and, therefore, we are of the opinion,  that the Division Bench of the High Court was not justified in  upholding the action of the respondents on the ground that the  State has exercised the power under Rule 27 of the Rules.      We have perused the Action Taken Report of the State of  Assam in pursuance of this Court’s directions contained in  W.P.(C) No. 202 of 1995.  Para 27 of the Report is as follows: "Para 27 :  Of the 28 divisions in the  State, the areas of larger concern from the  point of view of significant illegal fellings are  Kamrup West, Sonitpur West, Dhubri, Nagaon  and Nagaon South Divisions.  Special  protection measures are taken in the areas  from time to time but this severely constrained  for allocation of resources of fund/police force.   Recently, combing operation has been initiated  in Kamrup West Division on receipt of the  report of large scale illegal fellings.  851 F.I.Rs  have been lodged with the police.  371 vehicles  seized, 2,888 persons arrested, 92  departmental proceedings drawn up against  the forest staff.  The number of Government  personnel against whom proceedings have  been initiated division wise are as follows:

1.  Sibsagar Division                   7 Nos. 2.  Nagaon Division                     9 Nos. 3.  Nagaon South Division               5 Nos. 4.  Goalpara Division           9 Nos. 5.  Darrang Division                    3 Nos. 6.  Cachar Division                     18 Nos. 7.  Kamrup West Division                22 Nos. 8.  Dhubri Division                     10 Nos. 9.  Karimganj Division          2 Nos."

It is pertinent to notice that the appellant was working as   Assistant Conservator of Forest attached to North Kamrup  Division and the North Kamrup is not part of the Action Taken  Report. Common Cause, A Registered Society vs. Union of India  & Ors. , (1999) 6 SCC 667  :  This case relates to the allotment of  retail outlets of petroleum products by Minister concerned out of  discretionary quota.  This Court by its earlier decision held the  allotments to be arbitrary, discriminatory and mala fide and set  aside the allotments.  This Court also held that the Minister  committed misfeasance in public office.  This Court issued show  cause notice to the Minister.  Accordingly, notice was issued as to  why a direction be not issued to police authority to register a case  and institute criminal prosecution against the Minister for  criminal breach of trust or any other offence.  This Court also  ordered CBI to conduct investigation into offence of "criminal  breach of trust" or "any other offence" and also awarded

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exemplary damages of Rs. 50 lakhs to be paid by the Minister to  the Government Exchequer.  Review Petitions were filed against  these two judgments and orders.  This Court while sustaining the  earlier order setting aside 15 allotments of petroleum outlets and  agreeing that there should be public accountability  and  transparency in administrative matters, held, there was error  apparent on the fact of the record resulting in serious miscarriage  of justice in regard to the decision about commission of  misfeasance in public office by the Minister and directions for  payment of exemplary damages of Rs. 50 lakhs and for  investigation by CBI against the Minister, this Court held that  part of  the judgment not sustainable.  Saghir Ahmad, J.   speaking for the three Judge Bench in paragraph 176 of the  judgment observed as follows: "176.  A man has, therefore, to be left alone to  enjoy "LIFE" without fetters.  He cannot be hounded  out by the police or CBI merely to find out whether  he has committed any offence or is living as a law- abiding citizen.  Even under Article 142 of the  Constitution, such a direction cannot be issued.   While passing an order under Article 142 of the  Constitution, this Court cannot ignore the  substantive provision of law much less the  constitutional  rights available to a person."

Indian Bank vs. ABS Marine Products Pvt. Ltd. 2006(4)  SCALE 423 : In Paragraph 23 of the above judgment, this  Court (Dr. AR. Lakshmanan & R.V. Raveendran,JJ.)  observed as follows: "One word before parting.  Many a time, after  declaring the law, this Court in the operative part of  the judgment, gives some directions which may  either relax the application of law or exempt the  case on hand from the rigour of the law in view of  the peculiar facts or in view of the uncertainty of  law till then, to do complete justice.  While doing so,  normally it is not stated that such direction/order is  in exercise of power under Article 142.  It is not  uncommon to find that courts have followed not the  law declared, but the exemption/relaxation made  while moulding the relief in exercise of power under  Article 142.  When the High Courts repeatedly  follow a direction issued under Article 142, by  treating it as the law declared by this Court,  incongruously the exemption/relaxation granted  under Article 142 becomes the law, though at  variance with the law declared by this Court.  The  Courts should therefore be careful to ascertain and  follow the ratio decendendi, and not the relief given  on the special facts, exercising power under Art.  142.  One solution to avoid such a situation  is for  this Court to clarify that the particular direction or  portion of the order is in exercise of power under  Art.142.  Be that as it may."

For the foregoing reasons, we are of the opinion that  this  appeal has absolute merits and the judgment passed by the  learned Judges of the Division Bench of the Gauhati High Court  affirming the judgment of the learned single Judge is bad in law  and against the directions issued by this Court in W.P.(C) No.  202 of 1995 dated 15.1.1998 and 12.5.2001.  We have,  therefore, no hesitation to set aside the judgment passed by the  learned single Judge and the Division Bench impugned in this

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appeal. In the result, the appeal is allowed and the judgment of the  High Court is set aside.  However, there shall be no order as to  costs.    The appellant is not guilty as alleged by the respondents  and as found by the High Court. In view of the order now passed, the respondents should  consider the name of the appellant for promotion and other  consequential benefits at the relevant point of time.  This  exercise should be done within three months from the date of  the receipt of this order and the appellant’s seniority should be  fixed at the appropriate place.