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Gauhati High Court · body

1995 DIGILAW 120 (GAU)

Golok Chandra Saikia Dr. v. State of Assam

1995-06-16

J.N.SARMA

body1995
This application has been filed challenging the legality and validity of the order dated 6.1.95 issued by the Secretary to the Govt of Assam, Veterinary Department, Dispur, Guwahati, putting the petitioner under suspension with immediate effect. That order is at Annexure 15 to the writ application and that is quoted below: “No.VFV.383/90/156 : Pending drawl of departmental proceeding against him Dr. Golok Chandra Saikia, Fodder Development Officer, Chenikuthi, Guwahati 3 is hereby placed under suspension with immediate effect.” 2. The brief facts are as follows: The petitioner was placed under suspension earlier by order dated 22.7.89 and subsequently by order dated 24.3.90 he was reinstated in service. Subsequently, again on 20.5.93 he was placed under suspension. Against this order, a writ application being Civil Rule No.l 115 of 1994 was filed and by order dated 6.4.94 that order of suspension of the petitioner was quashed and the petitioner was asked to be reinstated in service. As that order was not complied with, the petitioner filed Civil Original Petition (Contempt) No,208 of 1994 and notice was issued to the contemner. After hearing the parties on 16.8.94, the Court granted 10 days time to the authority to comply with the order of the Court. By order dated 1.10.94, the petitioner was reinstated in service ie Annexure 3 to the writ application. That is quoted below : “No.VFV.376/93/45 : Without prejudice to the departmental proceedings drawn up against Dr. Golok Chandra Saikia, Assistant Research Officer, Institute of Veterinary Biologicals, Khanapara, Guwahati 22 placed under suspension vide this Department's Notification No.VFV.152/89/137 dated 20.5.93, he is reinstated in service and posted as Assistant Research Officer, Institute of Veterinary Biologicals, Khanapara, Guwahati 22 with effect from the date of the reports for joining.” 3. The petitioner was ultimately posted as Fodder Development Officer at Chenikuthi ie Annexure 5 to the writ application. Though he reported to that duty but no charge was handed over but on his representation ultimately he got charge of the office on 8.10.94. Thereafter, the petitioner was transferred by order dated 24.10.94 Annexure 10 to the writ application. The petitioner submitted a representation on 26.10.94 for re-consideration of the order of transfer and by order dated 19.11.94 that order of transfer was cancelled ie Annexure 12 to the writ application. That is quoted below : “VFV.536/93PM/29 : In the interest of public service, this department Notification issued vide No. VFV.536/93/Pt-l/23dated24.10.94 transferring Dr. The petitioner submitted a representation on 26.10.94 for re-consideration of the order of transfer and by order dated 19.11.94 that order of transfer was cancelled ie Annexure 12 to the writ application. That is quoted below : “VFV.536/93PM/29 : In the interest of public service, this department Notification issued vide No. VFV.536/93/Pt-l/23dated24.10.94 transferring Dr. Sarat Chandra Talukdar as Fodder Development Officer, Guwahati and Dr. Golok Ch. Saikia as Assistant Project Officer (SAHP) Guwahati is hereby cancelled. The officers will revert back to their original post as shown below : 1. Dr.Golok Chandra Saikia - As Fodder Development Officer, Guwahati. 2. Dr.Sarat Chandra Tallukdar - As Assistant Project Officer (SAHP), Guwahati.” 4. The petitioner was again transferred and posted as Assistant Project Officer SAHP at Guwahati ie Annexure 13 to the writ application. The petitioner instead of carrying out the order of transfer filed a representation against this order of transfer and paragraph 14 with regard to that is quoted below : “That having shocked to find the aforesaid transfer order dated 28.11.94 and taking petitioner was treated since the order of reinstatement dated 6.4.94 passed by this Hon'ble Court in Civil Rule No. 1115 of 1994, the petitioner submitted an application out of cheer frustration on 30.11.94 before the respondents stating inter alia that he may not get due justice before the authority and therefore requested for a permission to move this Hon'ble Court for redressal of his grievances. The petitioner states that this application in reference was filed by him out of cheer frustration and taking into consideration the order of his reinstatement in the post of Assistant Research Officer, Fodder Development Officer, Assistant Project Officer (APO) again to the post of Fodder Development Officer and lastly to the post of Assistant Project Officer during the period 1.10.94 to 30.10.94.” 5. That thereafter, the order of suspension dated 6.1.95 was passed and it is this order which challenged in this writ application. Hence, this writ application. 6. I have heard Shri BD Das, learned Advocate for the petitioner and Shri KC Mahanta, learned Advocate for the respondents. 7. On 10.1.95 an order was passed making the Rule returnable within 2 (two) weeks with a further direction to produce the record. No affidavit-in-opposition has been filed but the records have been produced. I have perused the record. 6. I have heard Shri BD Das, learned Advocate for the petitioner and Shri KC Mahanta, learned Advocate for the respondents. 7. On 10.1.95 an order was passed making the Rule returnable within 2 (two) weeks with a further direction to produce the record. No affidavit-in-opposition has been filed but the records have been produced. I have perused the record. The records show that the petitioner refused to hand over the charge to Dr.SC Talukdar. The following two notes dated 19.12.94 and 31.12.94 are quoted below: “19.12.94 : Office note above from per page may kindly be seen. Dr.GC Saikia FDO (under order of transfer) has not handed over charge to Dr. SC Talukdar. Latest notification is at Flag A. Submitted for order pi” “31.12.94 : Order was passed on 28th November but surprisingly enough Sri Saikia has not handed over the charge as yet. This is a gross indiscipline. So he may please be put under suspension forthwith. Sri SC Talukdar may be asked to assume charge.” 8. The power to suspend an employee is derived by the authority under Rule 6 of the Assam Services (Discipline and Appeal) Rules, 1964. That rule is quoted below: “6. Suspension - (1) The appointing authority or any authority to which it is subordinate or any other authority empowered by the Governor in that behalf may place a Government servant under suspension - (a) Where a disciplinary proceeding against him is contemplated or is pending; or (b) Where in the opinion of the authority aforesaid he has engaged himself in activities prejudicial to the interest or the security of the State; or (c) Where a case against him in respect of any criminal offence is under investigation, enquiry or trial.” 9. Here is case where a persons was transferred but he did not carry the order of transfer on the ground that he has filed a representation. This cannot be a ground not to carry out the order of transfer. If this sort of attitude is encouraged it will amount to indiscipline in the service and it will encourage others also to defy the order of transfer which is binding a person holding a transferable post. 10. This cannot be a ground not to carry out the order of transfer. If this sort of attitude is encouraged it will amount to indiscipline in the service and it will encourage others also to defy the order of transfer which is binding a person holding a transferable post. 10. The law on this point of suspension has been settled by recent decision of the Supreme Court reported in AIR 1994 SC 2296 (State of Orissa vs. Bimal Kumar Mohanty) wherein the Supreme Court has laid down the law as follows : “It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of for biding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. It would be another thing if the action is actuated by malafides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge.” 11. In that view of the matter, there is no merit in this writ application and the same is dismissed. However, before I part with the record I give the following directions for the interest of justice: Even now the petitioner shall be allowed to carryout the earlier order of transfer dated 28.11.94 and if he gives an undertaking in writing to carry out that order of transfer within a time fixed by the authority, the authority shall withdraw the order of suspension of the petitioner and shall allow him to join on his new place of posting but if he does not give an undertaking in writing, the authority may proceed as against him by initiating a departmental proceeding as proposed in the order. This shall be done by the authority within a period of 15 days from the date of receipt of this order. 11 A. Some arguments were advanced regarding the validity of the order of transfer dated28.11.94 but in the facts and circumstances of this case, I am not inclined to interfere with the order of transfer as I find that the order of transfer was justified. 12. This disposes of the writ application.