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2004 DIGILAW 192 (GAU)

Abiram Pegu v. State of Assam

2004-03-17

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. By this writ petition, a grievance has been made in respect of two orders by which the monthly salary of the petitioner has been stopped and the petitioner has been transferred. 2. Adverting to the facts of the case, the petitioner was appointed as Assistant Teacher in Adarsha M.E./M.V. School at Dhemaji in the year 1995 and since then he has been serving as such. When his salary and allowances were not released, he had to approach this Court by filing the writ petition registered and numbered as Civil Rule No. 2418/96. The writ petition was disposed of by an order dated 29.05.1996 with a direction to the respondents to make an enquiry relating to the grievance made in the writ petition and in the event of finding the same to be correct an appropriate order should be passed for payment of salary and allowances. Pursuant thereto, necessary enquiry etc. were carried out and the petitioner was paid his salary and allowances w.e.f. 12.07.2000 on which date formal order for release of his salary and allowances was passed. Being aggrieved by non-payment of arrear salary and allowances from the date of appointment, i.e., 08.06.1995, the petitioner approached this Court by filing yet another writ petition being W.P.(C) No. 345/03. Another teacher namely Shri Tarun Pegu also approached this Court on the same very ground by filing W.P.(C) No. 344/03. 3. Both the aforesaid writ petitions were admitted by this Court. As per the averments made in the writ petition, the respondent No. 3, i.e., District Elementary Education Officer (D.E.E.O.), Dhemaji on receipt of the notice from this Court, got annoyed with the petitioner. By his letter dated 24.04.2003, the said D.E.E.O. directed the petitioner to be present in his office on 29.04.2003 along with the copy of the writ petition. The petitioner duly appeared before him and the said D.E.E.O. warned the petitioner to withdraw the case which he refused to do. The same very D.E.E.O. again by his letter dated 03.05.2003 asked the petitioner to show cause as to why departmental action should not be taken against him for filing the writ petition without informing the departmental authority. On receipt of the said show cause notice, the petitioner appeared before the said respondent and explained to him that the writ petition was filed claiming appropriate relief in respect of arrear salary and allowances. On receipt of the said show cause notice, the petitioner appeared before the said respondent and explained to him that the writ petition was filed claiming appropriate relief in respect of arrear salary and allowances. However, the respondent No. 3 was not satisfied with the explanation given and on many occasions the petitioner and said Shri Tarun Pegu were called to his office and put pressure to withdraw the writ petition. This was followed by issuance of Annexure-4 letter dated 21.10.2003 asking the Head Master of the school of the petitioner to forward his Service Book which was duly produced by the said Head Master. Thereafter the same very respondent issued the impugned Annexure-5 letter to the Block Elementary Education Officer, Dhemaji to stop the monthly salary of the petitioner along with said Shri Tarun Pegu. Such action was taken against them for their approach to the Court allegedly in violation of the Departmental Service Rules. This led to the withdrawal of the case by Shri Tarun Pegu, the writ petitioner in W.P.(C) No. 344/03. According to the petitioner such a course of action was compelled to be adopted by Shri Tarun Pegu due to financial hardship faced by him for non-payment of salary and allowances. However, the petitioner did not fall in line and he continued to pursue his writ proceeding. As a result, the Annexure-7 impugned order was issued transferring the petitioner to another school. 4. It is the legitimacy or otherwise of the action of the respondent No. 3 towards issuance of the aforesaid Annexures-5 and 7 orders dated 21.11.2003 and 27.11.2003 which has been questioned in this writ proceeding. 5. In the writ petition allegations have been made against the respondent No. 3. According to the petitioner the filing of the aforesaid writ petition led to the series of action including the issuance of the aforesaid impugned orders by the respondent No. 3 in colourable exercise of power. 6. Having regard to the nature of allegations made against the respondent No. 3 and the impugned action on his part such as finding fault with the petitioner in approaching this Court invoking its writ jurisdiction, this Court while issuing notice of motion in the present writ proceeding by order dated 06.01.2004 also directed the said respondent No. 3 to be present in the Court on 20.01.2004 to answer the allegations made in the writ petition. The matter was again taken up on 21.01.2004 on which date the respondent No. 3, i.e. Shri Tilak Saikia, District Elementary Education Officer, Dhemaji appeared before this Court in person. He tried to explain the series of action which were taken by him against the petitioner as recorded in the order dated 21.01.2004. As regard the summoning of the petitioner to his office along with the copy of the writ petition, he submitted that he wanted to verify the averments made in the writ petition. According to him the show cause notice was issued in terms of office memorandum dated 20.06.1995 and as per the advice of his subordinate staff, more particularly, one Shri Siva Dutta, UDA working under him. Regarding stoppage of salary of the petitioner, he submitted that such a course of action was adopted for the direct approach to this Court by the petitioner and also as per the advice of the said UDA. He also tried to justify the order of transfer in the name of rationalisation. 7. On 23.01.2004 said Shri Tilak Saikia, District Elementary Education Officer, Dhemaji once again appeared in person along with said Shri Siva Dutta. On being asked, Shri Dutta submitted that he never rendered any advice to Shri Saikia and it was Shri Saikia who along was responsible towards issuance of the impugned orders. He also submitted that he only drafted the letters etc. as per advice of Shri Saikia. 8. An affidavit-in-opposition has been field by the respondent No. 3. In the said affidavit also he has taken the same very stand as reflected in the order dated 21.01.2004 as noticed above. Referring to the Office Memorandum dated 20.06.1995 by which the Chief Secretary to the Government of Assam deprecated the practice of making direct approach to the higher authority without agitating the grievance first before the immediate superior authority. It is the case of the D.E.E.O., Dhemaji that he misunderstood the same and construed the High Court to be the higher authority and found fault with the petitioner of his direct approach to this Court. As regards the calling of the service book etc. a stand has been taken that he wanted to verify the service particulars of the petitioner pursuant to the complaint lodged against the petitioner. As regards the calling of the service book etc. a stand has been taken that he wanted to verify the service particulars of the petitioner pursuant to the complaint lodged against the petitioner. The explanation given in the affidavit in respect of the impugned order of transfer is that one Smt. Chiralata Borgohain made request for her transfer and it was on that basis she was accommodated in place of the petitioner. Such a course of action has also been stated to be for rationalisation of teacher's strength. 9. The petitioner has filed an affidavit in reply to the said affidavit in opposition denying the contentions raised therein. In reply the petitioner has stated that the respondent No. 3 has paid the arrear salary to some other similarly situated teachers. However, an exception has been made in the case of the petitioner for which he had to approach this Court by filing the above mentioned writ petition W.P.(C) No. 345/03. As regard the alleged misinterpretation of the office memorandum dated 20.06.1995, the petitioner has stated that the respondent No. 3 being highly qualified with Ph.D. Degree in English, it is unbelievable that there could be such wrong interpretation on his part. According to the petitioner such an excuse put forwarded by the respondent No. 3 is a lame excuse to somehow overcome the situation in which he is in. As regards alleged complaint against the petitioner, he has stated in the reply that such complaint is devoid of any material particulars and disclosures and is fabricated one. According to the petitioner his Service Book was obtained by the respondent No. 3 with the sole intention of depriving the petitioner of his monthly salary and allowances. He has also stated in the reply that with the withdrawal of writ petition being W.P.(C) No. 344/03 by Shri Tarun Pegu, his salary has been released by the respondent No. 3. According to the petitioner there is lack of bonafide exercise of power on the part of the respondent No. 3 in issuing the impugned order of transfer. If at all, Smti. Chiralata Borgohain was required to be accommodated the same could have been done without disturbing the petitioner against any one of the vacancy lying in and around Dhemaji Town. According to the petitioner there is lack of bonafide exercise of power on the part of the respondent No. 3 in issuing the impugned order of transfer. If at all, Smti. Chiralata Borgohain was required to be accommodated the same could have been done without disturbing the petitioner against any one of the vacancy lying in and around Dhemaji Town. In a nutshell, it is the case of the petitioner that the entire action on the part of the respondent No. 3 is not founded on any bonafide exercise of power but is based on colourable exercise of power. According to the petitioner he has been made a victim of the circumstances. 10. I have heard Mr. M.H. Rajbarbhuyan, learned counsel appearing for the petitioner and Mr. H. Sarmah, learned Standing counsel, Education Department, Assam. Mr. Rajbarbhuyan argued that going by the sequence of events as reflected in the writ petition, there is no manner of doubt that the impugned orders are the outcome of colourable exercise of power on the part of the respondent No. 3. Mr. Sarmah, referring to the affidavit-in-opposition filed by the respondent No. 3 submitted that it is only because of the misunderstanding on the part of the respondent No. 3 to the correct interpretation of the office memorandum dated 20.06.1995, he issued the impugned orders relating to withholding of salary of the petitioner and show cause notice. However, he submitted that the impugned transfer order was necessitated because of rationalisation. Mr. Sarmah was directed to produce the records of the case which he accordingly did. 11. I have considered the submissions made by the learned counsel for the parties and also have considered the statements made by the respondent No. 3 and Shri Siva Dutta, UDA in the office of the respondent No. 3. I have also considered the materials on record. There is no denial of the fact that the entire action was initiated by the respondent No. 3 on the sole ground that the petitioner had approached this Court for redressal of his grievance in respect of non-payment of his arrear salary and allowance. This Court cannot be oblivious of the series of events which took place after filing of the writ petition being W.P.(C) No. 345/03 by the petitioner. This Court cannot be oblivious of the series of events which took place after filing of the writ petition being W.P.(C) No. 345/03 by the petitioner. The respondent No. 3 immediately on receipt of the notice from the Registry of this Court asked the petitioner to be present in his office along with the copy of the writ petition. He also asked the petitioner and said Shri Tarun Pegu to withdraw their cases and in fact put pressure on them. There is no denial of the fact that Shri Tarun Pegu eventually has withdrawn the case filed by him and it was on that basis he has been paid his monthly salary. There could not have been any occasion on the part of the respondent No. 3 to issue a show cause notice to the petitioner proposing departmental action against him for approaching this Court by filing the writ petition. There also could not have been any occasions for the respondent No. 3 to issue the direction to the Block Elementary Education Officer to stop the monthly salary of the petitioner. On the face of it such action on the part of the respondent No. 3 disclosed malice. Being not content with such illegal action against the petitioner, the respondent No. 3 even called for the service book of the petitioner from the Head Master of the school, knowing fully well that the same would entail non-payment of salary to the petitioner. 12. I have gone through the recorded produced by the learned Standing counsel, Education Department. I have also perused the alleged complaint dated 02.04.2003 made against the petitioner by one Shri Tarun Paite. There is no material disclosures in the complaint. There is no disclosure of the identity of the complainant. This alleged complaint never resulted any action on the part of the respondent No. 3, However, he took prompt action by way of calling for the service book etc. of the petitioner on the basis of another complaint allegedly submitted by him on 20.10.2003 by one Shri M. Baruah. Like the previous complaint this one also lacks in material particulars. Even if the complaints are held to be genuine, there was no necessity of calling for the Service Book to verify the allegations. of the petitioner on the basis of another complaint allegedly submitted by him on 20.10.2003 by one Shri M. Baruah. Like the previous complaint this one also lacks in material particulars. Even if the complaints are held to be genuine, there was no necessity of calling for the Service Book to verify the allegations. Instead of respondent No. 3 ought to have furnished the petitioner with the copies of the those complaints asking for his explanation, if at all he was satisfied that such course of action was warranted. The respondent No. 3 has tried to justify his action towards issuance of impugned order of transfer in the name of "rationalisation". There is no withholding of the fact that in fact, the petitioner was transferred to another school only with the view to accommodate said Smt. Chiralata Borgohain. Everything fell on the petitioner from the date of asking him to submit the copy of the writ petition in WP(C) No. 345/03 to the date of issuance of the impugned order of transfer within the span of about 7 (seven) months. In between he was directed to withdraw the writ petition, his Service Book was called for, his salary was withheld and he was issued with show cause notice for approaching this Court by filing the writ petition. All these actions on the part of the respondent No. 3 lead to irresistible conclusion that his entire action towards issuance of the impugned orders were founded on malafide and colourable exercise of power. 13. In the affidavit-in-opposition dealing with the specified averments made by the petitioner in paragraph 5 of the writ petition that the petitioner was warned of dire consequence and was asked to withdraw the writ petition being W.P.(C) No. 345/03, the said respondent has denied the same with following statements : "It is further denied that the deponent threatened the petitioner with dire consequence and directed him to withdraw the writ petition and the deponent puts the writ petitioner to the strictest proof of the allegations made in the said paragraph." 14. I have gone through the records which contain the para wise remarks submitted by the respondent No. 3 to the Direction of Elementary Education, Assam in respect of the instant writ petition by his letter No. DEO/DMJ/HC-14/2004 dated 19.01.2004 with a copy to the Secretary to the Govt. of Assam, Education Department. I have gone through the records which contain the para wise remarks submitted by the respondent No. 3 to the Direction of Elementary Education, Assam in respect of the instant writ petition by his letter No. DEO/DMJ/HC-14/2004 dated 19.01.2004 with a copy to the Secretary to the Govt. of Assam, Education Department. In the said para wise remarks dealing with the said contention of the writ petitioner in paragraph 5, the respondent No. 3 has remarked as follows : "As an authority they were asked to attend in the office and asked to explain why they were made allegations against the authority without knowledge of the undersigned. The petitioners were simply asked to withdraw the W.P.(C), but not threatened as stated for disposing over the matter." 15. Thus there is apparent variation in the affidavit filed in this Court with the remarks furnished by the respondent No. 3 to the higher authority. 16. The stand of the respondent No. 3 that his entire action was on the basis of wrong interpretation of the office memorandum dated 20.06.1995 is equally unbelievable. By the said office memorandum the Chief Secretary to the Govt. of Assam emphasised the need for streamlining the procedure for submission of representation pertaining to transfer, seniority, promotion and other conditions of service of the Govt. employees. It was reiterated that unauthorised practice of addressing representations by such employee directly to the higher authority who is not his superior authority or not concerned with the matter represented, is against the norms and rules of discipline. There is no question of any misinterpretation of the said circular and that too by the respondent No. 3 who is stated to be a Class-I officer in the Education Department. Either way the conduct of the respondent No. 3 does not speak good of him. The stand taken by him that he misinterpreted the circular and thought the higher authority to include the High Court as well, leads to poor reflection on his part, occupying the position of a controlling officer in the Education Department. Either way the conduct of the respondent No. 3 does not speak good of him. The stand taken by him that he misinterpreted the circular and thought the higher authority to include the High Court as well, leads to poor reflection on his part, occupying the position of a controlling officer in the Education Department. On the other hand if such a case has been put forward by the respondent No. 3 being caught in the whirlpool on the face of his illegal action initiated against the petitioner and as noticed above, same leads to the irresistible conclusion that the entire action on the part of the respondent No. 3 is founded on malafide and colourable exercise of power. In either case the action of the respondent No. 3 does not behove of a responsible officer. With such an approach on the part of the respondent No. 3 towards such sensitive matter involving the teacher of an M.E. School, nothing good could be expected from him which is so required, he being a responsible officer in the Education Department. 17. On perusal of the records it is also revealed that the Govt. of Assam in the Education Department issued an order dated 29.05.2003 under the signature of the Secretary to the Govt. of Assam providing inter alia that for the transfer of the teachers, the District Elementary Education Officer shall issue orders on receipt of written approval from the Director of Elementary Education. On perusal of the impugned order of transfer, I do not find any such approval having been obtained by the respondent No. 3. 18. The test of bias as whether a reasonable man, fully apprised of all circumstances would feel the serious apprehension of bias. The test is not whether in fact, a bias has affected the decision. It is this sense that it is often said that justice must not only be done, but must also appear to be done. In the instant case the series of event which took place immediately after filing of the writ petition by the petitioner asserting his right to get his arrear salary and allowances which include issuance of show cause notice to the petitioner finding fault for such approach to the Court, withholding the salary, calling for the service book etc. In the instant case the series of event which took place immediately after filing of the writ petition by the petitioner asserting his right to get his arrear salary and allowances which include issuance of show cause notice to the petitioner finding fault for such approach to the Court, withholding the salary, calling for the service book etc. and finally issuing the orders of transfer lead to the irresistible conclusion that such action on the part of the respondent No. 3 was not bonafide and was not based on the principle of administrative fair-play. As per his own admission the petitioner was transferred to accommodate another teacher without, however, explaining anything as to why the said teacher could not be accommodated against any of the vacancies available and also as to why it was the petitioner on whom the choice fell. The respondent No. 3 also resorted to falsehood by making false statement during his personal appearance before this Court on 21.01.2004. He attributed part of his fault to the UDA of his Office Shri Siva Dutta. Said Shri Siva Dutta appeared before this Court on 23.01.2004 and denied rendering any advice to the respondent No. 3. He rather asserted that it was the respondent No. 3 who alone suggested the aforesaid course on action against the petitioner. On such assertion made by Shri Dutta, there was no denial on the part of the respondent No. 3. Falsification of his statement is also discernible from the comparison made between the para wise comments and the affidavit filed before this Court by the respondent No. 3. 19. In view of the aforesaid discussions and on perusal of materials on record I am of the considered opinion that the impugned orders dated 21.11.2003 (Annexure-5) and 27.11.2003 (Annexure-7) are not sustainable and accordingly the same are set aside and quashed. Consequently, the petitioner shall be entitled to all his service benefits which would have accrued to him but for impugned orders. 20. The writ petition stands allowed imposing the cost of Rs. 1000/-(Rupees one thousand) only on the respondent No. 3 in his personal capacity. 21. Writ petition stands allowed. Let copies of this judgment and order be sent to the Chief Secretary, Govt. of Assam and the Secretary to the Govt. of Assam, Education Department for their information.