Research › Search › Judgment

Gauhati High Court · body

2001 DIGILAW 94 (GAU)

Badan Neog v. State of Assam and Ors.

2001-04-03

A.K.PATNAIK

body2001
The petitioner has been founder Headmaster of Dekoria High School (now Dekona HS School) at Itakhola. He was allowed to officiate as the Principal of the said school by order dated 8.1.87 of the Director of Secondary Education. Assam and since then he has been working as officiating Principal of the said School. By a letter dated 20.2.2001, the petitioner informed the Director of Secondary Education, Assam that he has decided not to continue in service as Principal of the said school as he wanted to contest the forthcoming Assembly Election 2001 as a candidate of Congress (I). In the said letter dated 20.2.2001, the petitioner also intimated the Director of Secondary Education his decision to go on voluntary retirement and requested him to accept his request for voluntary retirement before 15th Marqh, 2001 so that he can be free to do the election work. When he did not receive any information from the Director of Secondary Education in reply to the said request for accepting his voluntary retirement, he wrote another letter dated 14.3.2001 to the Education Secretary, Govt of Assam requesting him to grant him voluntary retirement and to release him as soon as possible. But he received an order dated 17.3.2001 from the Director of Secondary Education, Assam placing him under suspension pending drawal of departmental proceeding against him. In the said order dated 17.3.2001, it was mentioned that the petitioner was placed under suspension pending drawal of departmental proceeding pursuant to Govt order dated 16.3.2001. Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution for quashing the said order of suspension dated 17.3.2001 and for directing the respondents to allow the petitioner to go on voluntary retirement with immediate effect. 2. Mr. AK Bhattacharyya, learned counsel appearing for the petitioner submitted that the order of suspension was arbitrary and violative of Article 14 of the Constitution. He further submitted that the Govt has placed the petitioner under suspension pursuant to a letter written by the MLA, Sotia Constituency and the records will show that the order of suspension has been passed on political grounds. According to Mr. Bhattacharyya the order of suspension is vitiated by malafide and is liable to be quashed. He further submitted that the Govt has placed the petitioner under suspension pursuant to a letter written by the MLA, Sotia Constituency and the records will show that the order of suspension has been passed on political grounds. According to Mr. Bhattacharyya the order of suspension is vitiated by malafide and is liable to be quashed. He further argued that since the petitioner was himself opting to go out from service by voluntary retirement, there was no necessity for placing the petitioner under suspension and the order of suspension was passed without any application of mind. 3. Mr. Chinmoy Choudhury, learned Senior Govt Advocate, on the other hand, produced the records and submitted that the petitioner has been in the habit of indulging in politics while functioning as the Principal of the school and for this reason he has been placed under suspension. He contended that the Govt had the power under the relevant rules to initiate disciplinary proceeding against the petitioner for indulging in political activities and to place him under suspension. 4. There is no. dispute over the proposition that Govt has the power to initiate disciplinary proceeding against a Govt servant and place him under suspension pending completion of such disciplinary proceeding. But the power of the Govt to place a Govt servant under suspension cannot be exercised arbitrarily or with malafide or without any application of mind. In State of Orissa vs. Bimal Kumar Mohanty, AIR 1994 SC 2296 , the Supreme Court held that the order of suspension can be passed only after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of evidence placed before the disciplinary authority and on application of mind by the disciplinary authority. The disciplinary authority should consider all relevant aspects and decide whether it is expedient to keep an employee under suspension pending disciplinary proceeding. It should not be as an administrative routine and should not be resorted to automatically in case of every disciplinary proceeding initiated against the Govt servant. In the said decision, the Supreme Court made it clear that where the allegations or charges against the Govt servant are grave in nature, such as defalcation of funds or serious acts of omission or commission, suspension will be justified. 5. In the said decision, the Supreme Court made it clear that where the allegations or charges against the Govt servant are grave in nature, such as defalcation of funds or serious acts of omission or commission, suspension will be justified. 5. Thus the Court has to examine the facts of each ease to find out whether the order of suspension was vitiated by arbitrariness, malafide or non application of mind. As it appears from the records produced before the Court by Mr. Chinmoy Choudhury that on 14.3.2001 a note was put up before the Minister, Education that as per the report of the Deputy Commissioner, Sonitpur the petitioner has violated the Service Rules by applying for party ticket for the ensuing Assembly Election and therefore he deserves punishment in the disciplinary proceeding and that the Deputy Commissioner has mentioned that the petitioner was once put under suspension and later on reinstated as per High Court order and if the petitioner commits the same offence he may again be put under suspension and disciplinary proceeding may be drawn if the authority so pleases. Pursuant to the said note, the Minister passed an order on 14.3.2001 that the petitioner for his misconduct was liable to be punished and he may be placed under suspension with immediate effect and departmental proceeding may be drawn subsequently. The aforesaid facts as available on record would show the only reason as to why the petitioner was placed under suspension was that he had applied for a party ticket for contesting the ensuing Assembly Election. In the note dated 14.3.2001 placed before the Minister as well as the report dated 12.1.2001 of the Deputy Commissioner, Sonitpur, Tezpur, there is nothing to show that after the petitioner applied for candidature for the ensuing Assembly Election to the Congress High Command, the petitioner has indulged in any political activity, hi the report dated 12.1.2001, however, it has been stated that the petitioner had delivered a speech at the election meeting organised by the Congress (I) Party for the last Parliamentary Election on 5.2.99 at 10 AM for which disciplinary proceeding was initiated against him by the Inspector of Schools, Sonitpur, Tezpur. But in the said report of the Deputy Commissioner, Sonitpur, no recent political activity of the petitioner has been mentioned after the election meeting for the last Parliamentary Election held on 5.2.99. But in the said report of the Deputy Commissioner, Sonitpur, no recent political activity of the petitioner has been mentioned after the election meeting for the last Parliamentary Election held on 5.2.99. There was therefore no immediate cause for the authorities to place the petitioner under suspension other than the act of the petitioner in applying for a party ticket to the Congress High Command for contesting the election. In my considered opinion, the aforesaid act of the petitioner cannot be considered so serious a misconduct requiring suspension of the petitioner particularly when the petitioner in his letter dated 20.2.2001 to the Director, Secondary Education, Assam has informed him that he has decided to take voluntary retirement from service with a view to contest the forthcoming Assembly Election as a candidate of the Congress (I) Party. When the petitioner had himself given a notice to the authorities that he would be going on voluntary retirement for the purpose of contesting Assembly Election as a candidate of Congress (I), the disciplinary authority should have allowed the petitioner to go on voluntary retirement on expiry of notice period instead of placing the petitioner under suspension. The order of suspension is therefore vitiated by arbitrariness and non application of mind and was liable to be quashed. 6. Mr. Bhattacharyya, learned counsel for the petitioner next contended that the Govt should have allowed the petitioner to go on voluntary retirement and released him so that he could contest the election which is scheduled to be held in May, 2001. He cited the decision of the Supreme Court in Dinesh Chandra Sangma vs. State of Assam & others, AIR 1978 SC 17 in support of this contention that under FR 56, the Govt servant had been given the absolute right to go on voluntary retirement by serving a notice on the Govt and that the Govt had no power whatsoever to stop the Govt servant to go on voluntary retirement. Mr. Bhattacharyya also relied on the decision of the Supreme Court in Manjushree Pathak vs. Assam Industrial Development Corporation Ltd & others, (2000) 7 SCC 390 in support of his argument that even before the expiry of the notice period, an employee can be allowed to go on voluntary retirement if he had earned leave to his credit equivalent to the short fall of the notice period. According to Mr. According to Mr. Bhattacharyya, although the 3 months notice period for voluntary retirement as provided in FR 56 (c) in the present case would expire only after 20th May, 2001, the petitioner had earned leave to his credit and the said period of earned leave can be taken into account and the petitioner may be released by way of voluntary retirement from service immediately so that the petitioner can contest the election in May, 2001. 7. Mr. Chinmoy Choudhury, learned Senior Govt Advocate, on the other hand, vehemently argued that it would be clear from the bare language of FR 56 (c) that voluntary retirement of a Govt servant will take place only on expiry of 3 months notice period and in this case the said 3 months notice period will only come into effect only after 20th May, 2001 and the petitioner cannot be retired voluntarily prior to 20th May, 2001. In support of his aforesaid submission, Mr. Choudhury relied on the decisions of the Supreme Court in HP Horticultural Produce Marketing & Processing Corporation Ltd vs. Suman Behari Sharma, (1996) 4 SCC 584 and in State of Haryana & others vs. SK Singhal, (1999) 4 SCC 293 . 8. As to when voluntary retirement of a Govt servant will take effect will depend upon the language of the statutory rule which is applicable to the concerned Govt servant. The statutory rule of the voluntary retirement applicable to the petitioner is FR 56 (c), which is quoted herein below : "(c) Any Govt servant may, by giving notice of not less than three months in writing to the appropriate authority, retire from service after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier." It will be clear from the language of the aforesaid FR 56 (c) that any Govt servant may retire from service after he attains the age of 50 years or has completed 25 years of service, whichever was earlier, by giving riot less than 3 months notice in writing to the appropriate authority. Hence, at least 3 months notice in writing has to be given to the appropriate authority by the Govt servant. Hence, at least 3 months notice in writing has to be given to the appropriate authority by the Govt servant. The aforesaid language of FR 56 (c) would also make it clear that on expiry of the 3 months notice in writing to the appropriate authority, the Govt servant stands retired from service by operation of the aforesaid statutory rule and no orders are required to be passed by the Govt accepting the voluntary retirement of the Govt servant. Interpreting the aforesaid provision in FR 5 6 (c), the Supreme Court held in Dinesh Chandra Sangma vs. State of Assam & others, (supra), AIR 1978 SC 17 that the consent of the Govt was not necessary to give effect to the voluntary retirement of the Govt servant under FR 56 (c) and once the conditions of FR 56 (c) are fulfilled the Govt servant was to be held lawfully retired as notified by him. This being the legal position, the question of this Court directing the Govt to pass any order accepting the voluntary retirement of the petitioner prior to the expiry of the notice period pursuant to the notice dated 20.2.2001 of the petitioner does not arise. 9. In the case of Manjushree Pathak vs. Assam Industrial Development Corporation Ltd & others (supra), cited by Mr. Bhattacharyya, learned counsel for the petitioner, the rule for voluntary retirement applicable to the employees of the Assam Industrial Development Corporation was different from the Rule FR 56 (c) applicable to the petitioner. Under the proviso to Rule 18 of the AIDC Ltd t (Employees Service) Rules, 1992 it was stipulated that any shortfall of the notice period may be adjusted towards the earned leave due to the employee concerned and the Supreme Court held that assuming 3 months prior notice was required to be given by the employee in terms of Rule 18 itself, any short fall of the notice period could be adjusted towards the earned leave due to the employee. But there is nothing in FR 56 (c) to show that any short fall of the notice period of 3 c months could be adjusted towards his earned leave due to the concerned Govt servant. Hence, the aforesaid decision of the Supreme Court in Manjushree Pathak vs. Assam Industrial Development Corporation Ltd was not applicable to the present case. 10. But there is nothing in FR 56 (c) to show that any short fall of the notice period of 3 c months could be adjusted towards his earned leave due to the concerned Govt servant. Hence, the aforesaid decision of the Supreme Court in Manjushree Pathak vs. Assam Industrial Development Corporation Ltd was not applicable to the present case. 10. On the other hand, the decisions of the Supreme Court in HP HPMPC , Ltd vs. Suman Behari Sharma and State of Haryana & others vs. SK Singhal (supra) cited by Mr. Chinmoy Choudhury would show that the Supreme Court has reiterated the law laid down in Dinesh Chandra Sangma's case that under FR 56 (c) no acceptance of request for voluntary retirement by the Govt was required when the Govt servant exercises his right for voluntary retirement and that the effect of FR 56 (c) was statutory unlike the case of a contract e which required the express order of acceptance of retirement. The result is that voluntary retirement of a Govt servant under FR 56 (c) will take effect on any date as specified in the notice of the Govt servant for voluntary retirement on or after expiry of 3 months notice period. 11. For the aforesaid reasons, while I quash the impugned order of suspension of the petitioner, I am not inclined to direct the respondents to pass any order to accept or allow the petitioner to go on voluntary retirement before the expiry of 3 months from the notice dated 20.2.2001 for voluntary retirement given by the petitioner. Since, the order of suspension has been quashed, the petitioner will be reinstated in service forthwith and will be allowed to resume his duties. The writ petition is partly allowed but considering the facts and circumstances of the case, the parties shall bear their own costs.