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2003 DIGILAW 538 (GAU)

Kirti Chandra Phukan v. State of Assam

2003-12-03

BIPLAB KUMAR SHARMA

body2003
JUDGMENT B.K. Sharma, J. 1. As agreed to by the learned counsel for the parties these two writ petitions involving the same parties are taken up together for decision. A common question of law is involved in both the writ petitions and the reliefs sought for are consequential to one another. 2. In W.P. (C) No. 8204/2002, the petitioner has made a challenge to Annexure - VI order dated 29-8-2002 by which the respondent No. 4 was nominated as the Secretary of the Governing Body of Sadiya College for a period of six months. It is the case of the petitioner that he is the founder principal of Sadiya College and by virtue of operation of the relevant rules he became the ex-officio Secretary of the Governing Body of the College. By an order dated 30.1.2002, the Governing Body of the College was constituted for a period of three years and the senior most Lecturer of the College was made the ex-officio Secretary in place of the Principal. Being aggrieved, the petitioner approached this court filing W.P. (C) No. 638/2002. This Court disposed of the writ petition by its order dated 9.8.2002 holding the appointment of the respondent No. 3 therein namely Shri Haragobinda Barkakoty as ex-officio Secretary illegal and directed the State respondent not to allow him to act as the ex-officio Secretary of the Governing Body of the College. Liberty was granted to the State-respondent to allow the writ petitioner to act as the ex-officio Secretary in the capacity of Principal of the College. 3. After the said order of this court the present respondent No. 4 in the present writ proceeding was nominated to act as the secretary of the Governing. Body of the College by the impugned order dated 29.8.2002. 4. Mrs. Dutta Chowdhury, learned counsel appearing for the petitioner argued on two counts namely that inspite of the fact that the impugned order has. already spent its force, the respondent No. 4 is still functioning as Secretary of the Governing Body. Secondly it is her submission that the pre-condition towards substituting the regular Principal of the College to act as the Secretary of the Governing Body by way of appointing the respondent No. 4 as the Secretary are not fulfilled. In this connection Mrs. already spent its force, the respondent No. 4 is still functioning as Secretary of the Governing Body. Secondly it is her submission that the pre-condition towards substituting the regular Principal of the College to act as the Secretary of the Governing Body by way of appointing the respondent No. 4 as the Secretary are not fulfilled. In this connection Mrs. Chowdhury has referred to a Division Bench judgment of this Court as reported in(1987) 2 GLR 286 (Shri Dugha Nath Sarma v. Smt. Sarada Bezbarua and Ors.), In that case also the Vice Principal of the college in question was appointed as Secretary (Ex-Officio) to the replacement of the Principal of the College. Referring to Rule 22 Assam Aided College Management Rules, 1976 the Division Bench held that the pre-condition for nominating the Vice Principal as ex-officio Secretary was absent and thus was violative of Rule 22 of the said rules. 5. Mr. R.P. Sarma, learned counsel appearing for the respondent Nos. 3 and 4 on the other hand argued that the only requirement towards nominating another person to act as the ex-officio Secretary of the College is the one as provided under Rule 4 of the Assam non-Government College Management Rules, 2001. There is no dispute at the bar that the aforesaid rules of 2001 is applicable in the instance case. Proviso to Rule 4 gives the power to the competent authority to nominate any person from the teaching staff of the College to act as the Secretary in lieu of the Principal of the College, for a period of six months and beyond that period with the approval of the State Government. Thus it will be seen that the provision of Rule 4 are different from the provision of Rule 22 of the 1976 Rules. Under proviso to Rule 4 of the 2001 Rules the Director of Higher Education is empowered to nominate any person from the teaching staff of the College to act as the Secretary in lieu of the Principal of the College if the circumstances so demand. In the affidavit-in-opposition filed on behalf of the respondent Nos. 3 and 4 it has been pointed out that there are serious allegation including allegation pertaining to financial irregularities against the writ petitioners. In the affidavit-in-opposition filed on behalf of the respondent Nos. 3 and 4 it has been pointed out that there are serious allegation including allegation pertaining to financial irregularities against the writ petitioners. It was under this circumstances the petitioner was replaced as Secretary of the College by nominating the respondent No. 4 as the ex-officio Secretary of the College. In this connection Shri Sarma, learned counsel appearing for the respondent Nos. 3 and 4 in W.P. (C) No. 8204/2002 has drawn my attention to the irregularities allegedly committed by the petitioner for which he has been placed under suspension. 6. In W.P. (C) No. 3222/2003 the writ petitioner has made a challenge to the order of suspension and the approval given by the Director of Higher Education. The Governing Body of the College by resolution dated 22.2.2003 decided to place the petitioner under suspension on the ground of manipulation of College documents, financial irregularities of College fund and administrative irregularities. The said resolution of the Governing Body was approved by the Director of Higher Education by an order dated 15.3.2003. On the same date the petitioner was placed under suspension by an order issued under signature of the respondent No. 4 (respondent No. 5) in W.P. (C) No. 3222/2003. 7. Mr. C. Barua, learned senior counsel appearing for the writ petitioner in this writ petition strenuously argued that the action on the part of the Governing Body and the respondent No. 4/5 is per se illegal and is not sustainable. Mr. Barua has submitted that the respondent No. 4/5 having been nominated only for a period of six months by order dated 29.8.2002, his term expired on 29.2.2003 and could not have passed the order dated 15.3.2003 placing the petitioner under suspension. Further submission of Mr. Barua is that the resolution dated 22.2.2003 adopted by the Governing Body of the College is illegal firstly because there was no formation of quorum and secondly because, as revealed from the affidavit-in-opposition filed on behalf of the respondent Nos. 3 and 5 and in W.P. (C) No. 3222/2003, a non-member namely Shri Nandalal Bohra was absent in the proceeding wherein the resolution to place the petitioner under suspension was taken. Further submission of Mr. 3 and 5 and in W.P. (C) No. 3222/2003, a non-member namely Shri Nandalal Bohra was absent in the proceeding wherein the resolution to place the petitioner under suspension was taken. Further submission of Mr. Barua is that although the petitioner was placed under suspension way back in March, 2003, he has not been paid his subsistence allowance and that the proposed departmental proceeding has not been initiated as yet. 8. Countering the above submissions Mr. R.P. Sarma, learned counsel appearing for the respondent Nos. 3, 4 and 5 submitting that although the period specified in the impugned order dated 29.8.2002 nominating him to be the Secretary of the Governing Body of the College has expired on 29.2.2002, he having been appointed as the Principal-in-Charge of the College before expiry of the said period of six months, he remains the ex-officio Secretary of the Governing Body of the College by operation of Rule 4(1)(b) of the 2001 Rules and the terms specified in the impugned order dated 29.8.2002 has become redundant. There is no dispute at the bar that in the meantime by resolution dated 22.2.2003 adopted by the Governing Body of the College, the respondent No. 4 has been appointed as Principal in-charge of the College. Lastly it has been argued by Mr. Sarma that the petitioner has got alternative remedy by way of submission of a departmental appeal as provided for under Rule 12(2) of the Assam Aided Colleges Employees Rules, 1960. 9. I have given my anxious consideration to the submission made on behalf of the parties. The learned Govt. Advocate appearing on behalf of the State of Assam has adopted the arguments advanced by Mr. R.P. Sarma, learned counsel appearing for the respondent Nos. 3 and 5. 10. As already observed above, the pre-condition require under Rule 22 of the aforesaid rules are not to be found in the proviso to Rule 4(1) of the Rules, 2001. It is on record that the Governing Body of the College on the basis of the serious allegation including allegation of financial irregularities adopted a resolution to place the petitioner under suspension facilitating initiation and completion of a departmental proceeding. No fault can be found if an employee is placed under suspension on that account. The circumstances which preceded the same have been well explained in the affidavit-in-opposition. No fault can be found if an employee is placed under suspension on that account. The circumstances which preceded the same have been well explained in the affidavit-in-opposition. There was serious allegation against the petitioner requiring his replacement as ex-officio Secretary of the Governing Body of the College. The very fact that the resolution adopted by the Governing Body of the College was approved by the Director of Higher Education would go to show that the replacement of the petitioner as the Secretary of the Governing Body by the respondent No. 4/5 was justified. 11. Although the impugned order dated 29.8.2002 had specified the term of office of the respondent No. 4 to be for a period of six months which expired on 29.2.2003, he was appointed as the Principal-in-Charge of the College by a resolution adopted by the Governing Body of the College on 22.2.2003. Thus even otherwise also the said order dated 29.8.2002 lost its force on 22.2.2003 with the appointment of the respondent No. 4 as the Principal of the College. Upon such appointment of the respondent No. 4 as the Principal of the College he shall he the ex-officio Secretary of the Governing Body under Rule 4(1)(b) of the aforesaid rules. Thus the respondent 4 who was appointed as the Principal-in-Charge of the College on 22.2.2003 also became the ex-officio Secretary by operation of the said provision of the rules. Hence irrespective of expiry of this term as the Secretary of the Governing Body of the College as was stipulated in the impugned order dated 29.8.2002, the respondent No. 4 continues to be the ex-officio Secretary by virtue of his appointment as the Principal of the College. 12. As regards the argument that the resolution adopted by the Governing Body of the College was bad in law in absence of the requisite quorum I find that six members of the Governing Body formed the requisite quorum as per Rule 16 of the aforesaid rules of 2001. As regards the submission made that a non-member was present in the proceeding, I do not find any averments made to that effect in the writ petition. It is only on the basis of the averments made in the affidavit-in-opposition, faint submission has been made that such participation by a non-member has vitiated the proceeding. In this connection Mr. As regards the submission made that a non-member was present in the proceeding, I do not find any averments made to that effect in the writ petition. It is only on the basis of the averments made in the affidavit-in-opposition, faint submission has been made that such participation by a non-member has vitiated the proceeding. In this connection Mr. Barua has placed reliance on a decision of this Court in AIR 1962 Ass 94. I have gone through the judgment and find that the facts involved in that case was different with the present case and thus is not applicable to the present case. 13. There is nothing to show nor seriously argued by the learned counsel appearing for the petitioner that the said non-member actively participated in the proceeding or had any control in any manner over the proceeding of the Governing Body. As per the averments made in the affidavit-in-opposition filed on behalf of the respondent all together nine members were present in the proceeding. On the other hand the requirement under the provision of Rule 16 of the aforesaid rules of 2001 is the presence of six members so as to form the requisite quorum. In absence of any material to show that the alleged non-member had actively participated in the proceedings and or had influenced the proceeding in any manner I am not inclined to accept the submission made on behalf of the petitioner more particularly when it is on record that the requisite quorum was duly formed with the presence of the nominated members of the Governing Body of the College. 14. The submissions made on behalf of the petitioners that the respondent Nos. 4/5 could not have placed the petitioner under suspension by his order dated 15.3.2003 is also without any merit. The Governing Body of the College had taken a resolution on 22.2.2003 to place the petitioner under suspension which was duly approved by the Director of Higher Education as required under the law. It was only with the prior approval of the Director of Higher Education, the petitioner was placed under suspension by an order dated 15.3.2003. As already indicated above the respondent Nos. 4/5 upon his appointment as Principal-in-Charge of the College on 22.2.2003 also became the ex-officio Secretary of the Governing Body of the College by operation of the aforesaid provision of the rules. As already indicated above the respondent Nos. 4/5 upon his appointment as Principal-in-Charge of the College on 22.2.2003 also became the ex-officio Secretary of the Governing Body of the College by operation of the aforesaid provision of the rules. Thus naturally he could exercise his power and function as Secretary of the Governing Body of the College. What I find is that the Governing Body of the College adopted the resolution to place the petitioner under suspension on 22.2.2003 on which date even the term of office of the respondent Nos. 4/5 as stipulated in the order dated 29.8.2002 was in existence. The said resolution was approved by the Director of Higher Education on 15.3.2003 and it was only his communication which was made by the respondent Nos. 4/5 in his capacity as Secretary of the Governing Body of the College. I do not find any infirmity in the course of action adopted. 15. The submissions advanced by Mr. R.P. Sarma, learned counsel for the respondent Nos. 4/5 that there is alternative remedy for the petitioner to seek redressal of his grievance against the order of suspension by way of preferring an appeal to the appellate authority. Although merits consideration, I am not inclined to dismiss the writ petition on that count, since the writ petitions were admitted and were pending disposal before this court. However, the disposal of the writ petition will not preclude the petitioner to prefer departmental appeal before the appellate authority against the order of suspension. 16. It is submitted by the learned counsel for the petitioner that although the petitioner has been placed under suspension, he has not boon paid his subsistence allowance till date. Further no departmental proceeding has been initiated and there is no sight of completion of the same in near future. Countering the submission made, Mr. R.P. Sarma, learned counsel appearing for the respondent Nos. 3 and 5 placed before me the documents showing the payment of subsistence allowance. Shri Sarma, has also placed before me the documents to show that the petitioner had requested the College authorities to permit him to inspect the relevant documents towards preparation of his defence and to submit his written statement against the charge sheet. Mr. Sarma further submitted that it is the petitioner who is responsible for the delay towards completion of the departmental proceeding. 17. Mr. Sarma further submitted that it is the petitioner who is responsible for the delay towards completion of the departmental proceeding. 17. In view of the aforesaid facts and circumstances I do not find any merit in both the writ petitions and the same are dismissed. Before parting with the record I hereby direct the respondent-authorities to make the payment of subsistence allowance to the petitioner immediately, if not already paid. The respondent authorities will also ensure expeditious disposal of the departmental proceeding preferably within a period of six months from the date of receipt of a certified copy of the judgment. In case of any deliberate action on the part of the petitioner to delay the proceeding, such period of delay shall be set off from the aforesaid period of six months. It is always desirable that any proceeding initiated against any employees should come to its logical conclusion. The concerned respondent must not sit over the mater after placing the petitioner under suspension without doing anything towards completion of the department proceeding. It is needless to say that the petitioners shall be provided with all reasonable opportunity to defend his case. However, in case of any deliberate attempt on the part of the petitioner to delay the proceeding, the respondent authorities will be at liberty to proceed ex parte in the matter. No order as to cost. Writ petition dismissed.