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2003 DIGILAW 124 (GAU)

Raham Ali v. State of Assam

2003-03-25

AMITAVA ROY

body2003
JUDGMENT Amitava Roy, J. 1. The Petitioner is before this Court praying for an appropriate Writ, Order or Direction to ensure implementation of the instruction contained in the communication dated 13.9.2001 for drawing up a departmental proceeding against the Respondent No. 5 and for a further direction to the concerned authority of the Mandia Anchalik College, Mandia, not to reinstate the Respondent No. 5 as Principal thereof until the departmental proceeding as referred to in the communication dated 13.9.2001 is completed and the Respondent No. 5 is exonerated of the related allegations. 2. I have heard Mr. K.D. Das, learned Counsel for the Petitioner, Mr. K.C. Mahanta, learned G.A., Assam, for the Respondent Nos. 1 and 2 and Mr. A.S. Choudhury, learned Senior counsel for the Respondent Nos. 3, 4 and 5. 3. Briefly stated the relevant facts as narrated in the Writ petition are as follows: The Petitioner is a guardian of his ward studying in Mandia Anchalik College, Mandia(hereinafter called "the college"). He claims himself to be an active social worker of the locality and was one of the members of the previous Special Body of the College. The College was established in the year, 1981 and was eventually brought under the deficit grants in aid system in the year, 1996. The Respondent No. 5 is the founder Principal of the College. Initially he was functioning well but later on there were complaints about the manner in which he discharged his duties. Allegations regarding his involvement in financial irregularities were also received in May, 2000. After the audit for the period from 1.9.92 to 31.12.98, it was found that he had misappropriated College funds. The Special Body of the College discussed the matter in its meeting held on/19.1.2001 and by a resolution passed on the same date placed the Respondent No. 5 under suspension. The Director of Higher Education, Assam, Respondent No. 2, thereafter by a communication dated 30.1.2001 approved the said resolution of the Special Body. A complaint was also lodged with the Petition Committee of the Assam Legislative Assembly whereafter as per directions issued by the said Committee, the Respondent No. 2 submitted a report on 13.3.2001 indicating the nature of the allegations and the action taken in connection therewith. In due time, the earlier Special Body was dissolved and a new Governing Body was constituted. In due time, the earlier Special Body was dissolved and a new Governing Body was constituted. In the mean time, the Respondent No. 5 by communication dated 13.9.2001, Annexure-4 to the writ petition, again directed the Principal incharge of the College to draw up a departmental proceeding against the Respondent No. 5 and to complete the who procedure within three months and inform him about the action to be taken. The Petitioner has contended that the new Governing Body, nursing a soft corner for the Respondent No. 5 is deliberately sitting over the matter and that there is a move to reinstate the Respondent No. 5 as the Principal of the College. According to him, the reinstatement of the Respondent No. 5 as apprehended besides being detrimental to the academic and administrative affairs of the College would also provide him with the desired opportunity of destroying all evidence against him regarding financial irregularities, misappropriation and other allegations. He has also contended that the inaction on the part of the Principal incharge of the Governing Body of the College is in contravention of the Assam Aided College Management Rules, 1976 (hereinafter referred to as "the Rules"). 4. No affidavit in opposition has been filed by the State Respondents. A joint affidavit has been filed on behalf of the Principal incharge of the College, the Government Body thereof and the Respondent No. 5. Therein, the allegations of inaction levelled against the Governing Body and those against the Respondent No. 5 have been generally denied. The Respondent No. 5 on being instructed and authorised by the Principal incharge of the College and the Governing Body thereof as mentioned therein has sworn the affidavit. The answering Respondents have asserted that the Petitioner has no locus standi to file the writ petition and that the same has been filed by suppressing material facts. While denying the allegations with regard to unsatisfactory functioning of the Respondent No. 5 as the Principal of the College as alleged, it has been contended therein that he had fully cooperated with the Auditor appointed by the previous Governing Body in conducting the audit of the accounts of the College. It has been asserted, that on the other hand the Petitioner, who was appointed by the previous Governing Body as a member of the Audit team did not participate in the audit. It has been asserted, that on the other hand the Petitioner, who was appointed by the previous Governing Body as a member of the Audit team did not participate in the audit. The audit report dated 22.5.2000 was neither accepted nor rejected by the Governing body in its meeting held on 19.1.2001 and the Respondent No. 5 was directed to submit a clarification thereon. However, without waiting for such clarification by a separate resolution passed on the very same day, the Respondent No. 5 was placed under suspension. By a separate resolution, the Circle Officer of Baghbor Circle Office and the Secretary of the then Special Body were directed to conduct a thorough enquiry in connection with the audit report but the said enquiry was not done. According to the answering Respondents, the Respondent No. 5 extended full cooperation in the audit process and the Auditor in his audit note suggested that a Government Auditor should audit the accounts. 5. The Respondents have contended that the Respondent No. 5 was placed under suspension without the prior approval of the Director of Higher Education, Assam in violation of Rule 18 of the Rules and the approval of the said authority was granted only on 30.01.2001. They have maintained that though in the order of approval dated 30.1.2001, the Respondent No. 2 had desired that a departmental proceeding against the Respondent No. 5 be drawn up within a period of three months, the Special Body then in office lingered over the matter while the Respondent No. 5 continued to be under suspension. The reconstituted Special Body, therefore, it its meeting held on 23.10.2002 discussed in details all aspects of the matter as indicated hereinabove, and inter alia, resolved to withdraw the suspension of the Respondent No. 5 and to reinstate him as the Principal of the College. It was also resolved that the period of his suspension be treated as on duty and his arrear salary and allowances be released. Accordingly, the Respondent No. 5 was handed over the charge of the office of the Principal on 24.10.2002 pending approval of the Respondent No. 2. It was, however, resolved that the Respondent No. 5 would deposit a sum of Rs. Accordingly, the Respondent No. 5 was handed over the charge of the office of the Principal on 24.10.2002 pending approval of the Respondent No. 2. It was, however, resolved that the Respondent No. 5 would deposit a sum of Rs. 1,78,000/- in two instalments, the first to be deposited at the time of joining the post and the second within 15 days thereafter on the condition that if he was found not liable to pay any amount in the final audit, the same would be refunded to him. The charge of the office of the Secretary of the College, was however, retained with Md. Mehbub Rahman, Respondent No. 4. The Governing Body by a resolution taken on the same date approved the appointment of the Respondent No. 5 as the selected Principal with UGC scale of pay in terms of the notification dated 8.12.2000 to that effect issued by the Government, hi the said meeting, it was further resolved that the audit of the accounts of the College would be done within a short time and that if any discrepancy was found, the Respondent No. 5 would be made liable to pay such amount to the College. 6. It is the stand of the answering Respondents that in terms of the resolution, the Respondent No. 5 has already deposited Rs. 79,000/- to the College Fund and has been functioning as the Principal of the College from 24.10.2002. According to them, the complaint filed before the Petition committee of the Legislative Assembly contained false allegations and the Respondent No. 2 also submitted an ex parte report, which was false and baseless. According to them, the delay occurred because of indifferent attitude of the earlier Special Body. While denying the allegations that the present Governing Body has a soft corner for the Respondent No. 5, it has been asserted that the Respondent No. 5 has been reinstated after considering all relevant aspects of the matter in the interest of the College. They have maintained that the Governing Body has not exonerated the Respondent No. 5 and that there is no apprehension that on his reinstatement he would destroy or try to destroy the evidence against him with regard to financial irregularities. It has also been asserted that the Respondent No. 5 has not committed any irregularity as alleged and instead, he had asserted the Auditor while auditing the College accounts. It has also been asserted that the Respondent No. 5 has not committed any irregularity as alleged and instead, he had asserted the Auditor while auditing the College accounts. Their stand is that by reinstating the Respondent No. 5, the Governing Body has complied with the directions contained M the communication dated 30.1.2001 and 13.9.2001 after exhaustive consideration of the materials on record. According to them, the Respondent No. 5 on his reinstatement has been authorised to look after the academic affairs of the College only and would not handle the financial matter thereof. 7. This Court by order dated 4.10.2002 had issued notice of motion and in the interim directed that the Respondent No. 5 should not be reinstated as the Principal of the College without complying with the instruction contained in the letter dated 13.9.2001 of the Respondent No. 2. 8. The learned Counsel for the Petitioner has argued that the Respondent No. 2 having directed drawal of a disciplinary proceeding against the Respondent No. 5 by his communication dated 13.9.2001, the Governing Body of the College was duty bound to comply with the said direction and, therefore, the action of reinstating him in service by recalling the order of suspension by its resolution dated 23.10.2002 is not only in violation of the rules but also amounts to non-compliance of the direction of a higher authority. According to him, the Petitioner, apprehending that such a course of action would be taken by the Governing body had approached this Court to preempt the same and this Court by order dated 4.10.2002 had directed that the Respondent No. 5 should not be reinstated without complying with the instruction contained in the aforementioned communication and therefore, the action of the Governing body to the contrary is, ex facie, not sustainable in law and is liable to be declared illegal, null and void. He has argued that having regard to the materials on record, indicating the irregularities committed by the Respondent No. 5, his reinstatement as the Principal of the College would be detrimental not only to the institution but also the students in general. According to him the resolution dated 23.10.2002 of the Governing Body is, thus, liable to be adjudged illegal, arbitrary and malafide. 9. Controverting the above submissions, Mr. Choudhury, learned senior counsel for the Respondent Nos. 3, 4 and 5, has questioned the locus standi of the Petitioner. According to him the resolution dated 23.10.2002 of the Governing Body is, thus, liable to be adjudged illegal, arbitrary and malafide. 9. Controverting the above submissions, Mr. Choudhury, learned senior counsel for the Respondent Nos. 3, 4 and 5, has questioned the locus standi of the Petitioner. He has contended that the Petitioner himself was a member of the Governing Body at a point of time when the Respondent No. 2, while approving the suspension of the Respondent No. 5, had instructed drawal of a departmental proceeding against him (Respondent No. 5). But the Governing Body conveniently sat over the matter without complying with the said direction and, therefore, it was not open for the Petitioner to complain about any inaction on the part of the successor Governing Body. According to him, the Governing Body recalled the order of suspension of the Respondent No. 5 and reinstated him as the Principal of the College, after a thread bare discussion on all relevant aspects of the matter. He argued that on a reading of the resolution dated 23.10.2002, it would appear that the Respondent No. 5 was not given a clean chit and his reinstatement was subject to final orders to be passed after conducting of a fresh audit. He contended that prior approval of the Respondent No. 2 was not necessary for reinstatement of the Respondent No. 5 as would be apparent from a plain reading of Rule 18 of the Assam Non-Government College (Amendment) Rules, 2001, (hereinafter referred to as "2001 Rules") which was applicable to the facts of the present case. He has argued that the earlier Governing Body unduly delayed in taking action in the matter and, therefore, the Governing Body in office on a consideration of the materials on record thought it fit in the interest of the institution to reinstate the Respondent No. 5. The learned senior counsel contended that having regard to the relief prayed for in the writ petition, it was not open for the Petitioner to challenge the legality and/ or validity of the resolution dated 23.10.2002. He submitted that in view of the pendency of the writ petition, the Respondent No. 2 has not yet accorded his approval to the resolution dated 23.10.2002 of the Governing Body which has resulted in a situation of uncertainty prejudicial to the smooth management of the affairs of the institution. He submitted that in view of the pendency of the writ petition, the Respondent No. 2 has not yet accorded his approval to the resolution dated 23.10.2002 of the Governing Body which has resulted in a situation of uncertainty prejudicial to the smooth management of the affairs of the institution. According to him, the resolution dated 23.10.2002 was adopted by the Governing Body before it had come to learn about the order dated 4.10.2002 passed in the instant proceeding. According to him, the Respondent No. 5 came to learn about the same only on 1.11.2002 and from him, Governing Body, in the second week of November, 2002. 10. In reply, Mr. Das, learned Counsel for the Petitioner, sought to contend that the notice of the writ proceeding was received by the Respondent Nos. 3,4 and 5 on 11.10.2002. For the said purpose, the learned Counsel has invited the attention of this Court to a copy of a contempt petition filed by the Petitioner alleging deliberate non-compliance of the aforesaid order dated 4.10.2002. It is, however, noticeable that the Petitioner has not filed any rejoinder affidavit controverting the statements made in the affidavit of the answering Respondents. 11. In the mean time, the Respondent Nos. 3, 4 and 5 have also filed an application praying for cancellation, alteration or modification of the order dated 4.10.2002. The application has been registered as M.C. No. 1560/2002. The stand taken in the said application is the same as in their affidavit in opposition. The Petitioner, to the said application, has filed no counter. It is in this background that the rival contention of the parties will have to be examined. 12. The objection with regard to the locus standi should not detain this Court for long. This Court as referred to above entertained the petition and an interim direction was also issued in terms of the prayer made therein. The Petitioner is an ex-member of the Governing Body of the College. He also claims himself to be the guardian of his ward studying in the said institution. The issue raised in the petition has a bearing on the administration of the affairs of the College, which is a public institution. The instant proceeding is a public law proceeding and the issue raised herein involves public interest. He also claims himself to be the guardian of his ward studying in the said institution. The issue raised in the petition has a bearing on the administration of the affairs of the College, which is a public institution. The instant proceeding is a public law proceeding and the issue raised herein involves public interest. I am, therefore, not inclined to reject this petition on the ground of lack of standing of the Petitioner. 13. It would be convenient to deal with another aspect at the threshold before entering into the hub of the controversy. The Respondent Nos. 3, 4 and 5 have contended that they were not aware of the order dated 4.10.2002 at the point of time when the resolution dated 23.10.2002 was adopted. To the contrary is the contention of the Petitioner. According to him, the said Respondents, inspite of being aware of the above order of this Court, have in deliberate violation thereof, taken the said resolution. Though an attempt has been made by the learned Counsel for the Petitioner to establish that the above order of this Court was served on the said Respondents on 11.10.2002, considering the state of materials on record, I do not consider it discreet and proper to make any observation on this aspect of the matter more particularly when the contempt petition is pending. I leave it at that. Through the resolution dated 23.10.2002 has not been assailed by the Petitioner in the instant proceeding, but the fact remains that the Respondent Nos. 3, 4 and 5 have put forward the decision of the Governing Body as contained in the said resolution to contend that the direction of the Respondent No. 2 in terms of the communication dated 13.9.2001 and the order dated 4.10.2002 have thus been duly complied with. As has been noticed hereinabove, the Respondent No. 5 was placed under suspension as per the resolution dated 19.1.2001 of the Governing Body, on a consideration of the audit report that was submitted indicating financial irregularities involving the Respondent No. 5. The Respondent No. 2 approved the resolution by order dated 30.1.2001 and the Governing Body of the College was instructed to draw up a departmental proceeding against him within a period of three months. The Respondent No. 2 approved the resolution by order dated 30.1.2001 and the Governing Body of the College was instructed to draw up a departmental proceeding against him within a period of three months. Thereafter the action taken report was submitted by the said authority on 13.3.2001 before the Government which similarly indicated involvement of the Respondent No. 5 in financial irregularities relating to the affairs of the College. As no action was taken by the Governing Body then in office, in terms of the instructions issued by the order dated 30.1.2001, the Respondent No. 2 again by communication dated 13.9.2001 instructed the Principal incharge of the College to draw up a departmental proceeding against the Respondent No. 5, complete the same within a period of three months, place the matter before the Governing Body and inform him about the action to be taken. In this factual back drop, the Governing Body of the College on 23.10.2002 decided to reinstate the Respondent No. 5. The considerations on which the said decision was taken, inter alia, appear to be: a) the audit report discussed in the meeting held on 19.1.2001 was neither accepted nor rejected and the Respondent No. 5 was asked to submit a clarification but without waiting for the same, he was placed under suspension by another resolution taken in the same meeting; b) no prior approval of the Director of Public Instructions as required under the Rules was taken before placing the Respondent No. 5 under suspension; c) no reason in support of the decision to suspend the Respondent No. 5 was mentioned in the related resolution; d) the departmental proceeding was not initiated against the Respondent No. 5 within the period of three months in terms of the related Government circular which required that if charges and statements of allegations cannot be served within a period of three months, the concerned Government servant should be reinstated; e) the Respondent No. 5 would be directed to deposit a sum of Rs. 1,78,000/- in two instalments, first 50% at the time of joining and the remaining amount within 15 days thereafter; f) the Government vide notification dated 8.12.2000 had approved the recommendation of the State Selection Board of Assam for regularisation of the Respondent No. 5 as the Principal with U.G.C. scale of pay; g) the accounts of the College would be audited by the Government Auditors within a short time and if any discrepancy is found in the audit and if any recovery is to be paid from the Principal, he would pay the said amount, otherwise, necessary action would be taken against him. 14. It is noticeable that there is no material on record to suggest that the direction of the Respondent No. 2 to draw up departmental proceeding against the Respondent No. 5 had been assailed in any forum. The suspension of the Respondent No. 5 without prior approval of the Respondent No. 2 has also remained unquestioned. In course of the hearing, the learned Counsel for the Petitioner produced an order dated 22.7.2002 whereby the Governing Body presently in office was constituted. The learned Counsel for the Respondent Nos. 3, 4 and 5, has not disputed this position. Incidentally it appears that the resolution taken by the Governing Body for reinstating the Respondent No. 5 had been taken exactly on the expiry of 90 days from its constitution. There is no reason why no action was taken by the said Government Body as well, in terms of the direction of the Respondent No. 2 as contained in the communication dated 13.9.2001. No endeavour was made by the Governing Body to get the period of 90 days extended for taking steps to draw up a disciplinary proceeding against the Respondent No. 5 as directed by the Respondent No. 2 vide the aforementioned communication. Instead, one of the considerations in favour of reinstatement of the Respondent No. 5 is inaction on the part of the earlier Governing Body. The present Governing Body while reinstating the Respondent No. 5 has imp6sed a condition of depositing a sum of Rs. 1,78,000/-. His reinstatement is also subject to the outcome of the final audit to be conducted in future. It, therefore, indicates that the Governing Body while deciding to revoke the order of suspension has not absolved the Respondent No. 5 of the allegations relating to financial irregularities on merits. 1,78,000/-. His reinstatement is also subject to the outcome of the final audit to be conducted in future. It, therefore, indicates that the Governing Body while deciding to revoke the order of suspension has not absolved the Respondent No. 5 of the allegations relating to financial irregularities on merits. Another aspect of the matter is of substantial relevance. Under Rule 18 of 2001 Rules no final decision regarding appointment, promotion, suspension, termination, removal or dismissal of teaching or non-teaching staff including that of the Principal can be taken by the Governing Body without prior approval of the Director. The same mandate is found in Rule 18 of the Rules (1976 Rules). 15. In Hiranmoy Paul v. State of Assam and Ors. reported in 1995 (1) GLT 183 : 1995 (1) GLR 456, one of the questions which fell for consideration before this Court was whether prior approval of the Director of Public Instruction, Assam, (as it was then) was required where disciplinary proceeding was over and the suspension relating to teaching and non-teaching staff was sought to be withdrawn. This Court having regard to the expressions "regarding" and "suspension" used in the Rule 18 of the Rules held in the affirmative. In other words, this Court ruled that prior approval of the Director of Public Instruction, Assam, was necessary both for the teaching and non teaching staff before a final decision was taken to place one under suspension as well) as for withdrawal of such an order. The facts of the case in the said decision were governed by the Rules. I am in respectful agreement with the view expressed in the above decision. In the instant case, however, not only the Government Body has taken the resolution to revoke the suspension of the Respondent No. 5 but also has given effect to the said resolution by reinstating him to the post of Principal of the college with all incidental service benefits. Admittedly, before doing so no prior approval of the Respondent No. 2 has been taken. 16. As the legality and validity of the resolution dated 23.10.2002 has not been assailed in the present proceeding, I do not consider it necessary to dilate any further on this issue. The matter is pending before the Respondent No. 2 for approval of the action taken by the Government Body in terms of the aforementioned resolution. 16. As the legality and validity of the resolution dated 23.10.2002 has not been assailed in the present proceeding, I do not consider it necessary to dilate any further on this issue. The matter is pending before the Respondent No. 2 for approval of the action taken by the Government Body in terms of the aforementioned resolution. In the attending facts and circumstances of the case, I, therefore, deem it fit and proper to remit the matter back to the said authority, i.e., the Director Higher Education, Assam. The said authority would consider all relevant aspects of the matter and take an appropriate decision therein. As the controversy relates to the administration of the affairs of a College, it is further ordered that the Respondent No. 2 would complete the process as indicated hereinabove within a period of one month from the date of receipt of a certified copy of this judgment and order. With the above observations and directions the writ petition stands disposed. No costs.