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2009 DIGILAW 717 (GAU)

Maheswar Doley v. Karuna Kanta Kalita

2009-09-24

HRISHIKESH ROY, J.CHELAMESWAR

body2009
JUDGMENT 1. Heard Mr. A.K. Goswami, Learned Senior Counsel for the petitioner. Also heard Mr. K.N. Choudhury, learned Addl. Advocate General who appears for the respondent Nos. 3 and 4. Ms. B. Gogoi, Learned Counsel represents the respondent Nos. 1 and 2. 2. This petition is filed with the allegations that the respondents wilfully disobeyed the status quo order dated 4.3.2009 in Writ Appeal No. 64/09 passed by this Court. 3. The backdrop of the status quo order, was a transfer order dated 16.12.2008, whereby the writ petitioner serving as the Administrative Officer in the Directorate of Agriculture was transferred and posted in the office of the Director of Sericulture and in his place Kumud Chandra Bhattacharjee was posted on promotion. The petitioner challenged the transfer order by filing WP(C) No. 5410/08 but this Court dismissed the writ petition on 17.2.2009. During the writ proceeding, an interim order staying the transfer of the writ petitioner was operating and it appears that although an order dated 17.12.2008 releasing the petitioner from the Directorate of Agriculture was issued, the said release order was not acted upon. Accordingly, the admitted position is that the petitioner during the pendency of the writ proceeding continued to serve as the Administrative Officer in the Directorate of Agriculture. 4. After the writ petition was dismissed, the an appeal being WA No. 64/09 was filed by the petitioner on 20.2.2009. The very next day after filing of the writ appeal (20.2.2009), a communication dt. 21.2.2009 was issued by the Director of Agriculture to the writ petitioner, directing him to hand over charge of his office in the Agricultural Directorate to comply with the transfer order, in pursuant to the judgment dated 17.2.2009 passed by the learned Single Judge. 5. On 25.2.2009 a communication was sent by the Director of Agriculture to the Government with the intimation that the writ petitioner has not handed over charge pursuant to the dismissal of his writ petition. On 3.3.2009 the Government directed to the Director of Agriculture to release the writ petitioner forthwith from the post of Administrative Officer, to enable him to join in his transferred post as per the transfer order dated 16.12.2008. By the same communication, Kumud Chandra Bhattacharjee was permitted to unilaterally take over charge of the office of the Administrative Officer in the Directorate of Agriculture. 6. By the same communication, Kumud Chandra Bhattacharjee was permitted to unilaterally take over charge of the office of the Administrative Officer in the Directorate of Agriculture. 6. As is already recorded, on 4.3.2009, the Division Bench passed the status quo order in WA No. 64/09 filed by the writ petitioner. 7. Mr. A.K. Goswami, Learned Senior Counsel for the petitioner contends that till the passing of the status quo order by the Division Bench on 4.3.2009, the petitioner was serving as the Administrative officer in the Agriculture Directorate and therefore by virtue of the court's status quo order, the writ petitioner was entitled to remain in the post of Administrative Officer. It is further contended that Kumud Chandra Bhattacharjee never took over the unilateral charge, prior to the status quo order of this Court on 4.3.2009, and the documents showing taking over charge on 3.3.2009, a day prior to the status quo order, are doctored documents created specifically to nullify the Division Bench's status quo order. Mr. Goswami refers to the communication signed by the Director of Agriculture on 6.3.2009 (Annexure-VIII), which recorded that the petitioner is still attending Office in the Directorate at Khanspara, to contend that as on the day of the status quo order passed by the Division Bench, the petitioner was serving in his old post in the Directorate of Agriculture. 8. Mr. K.N. Choudhury, learned Addl. Advocate General, representing respondent Nos. 3 and 4, on the other hand, submits that in pursuant to the order passed by the Government on 3.3.2009, the Relieving Officer Kumud Chandra Bhattacharhjee took over unilateral charge of office at 4. P.M. on 3.3.2009 and therefore, the writ petitioner is not entitled to claim that the status quo order passed on 4.3.2009 by the Division Bench, will enable him to continue as Administrative Officer in the Directorate of Agriculture. Explaining the communication signed by the Director of Agriculture on 6.3.2009 (Annexure-VIII), Mr. Choudhury submits that in the said communication itself it is clearly indicated that Kumud Chandra Bhattacharjee has taken over unilateral charge on 3.3.2009. Explaining the communication signed by the Director of Agriculture on 6.3.2009 (Annexure-VIII), Mr. Choudhury submits that in the said communication itself it is clearly indicated that Kumud Chandra Bhattacharjee has taken over unilateral charge on 3.3.2009. It is also contended by the Learned Counsel for the respondents that after dismissal of the writ petition, the writ petitioner should have immediately handed over charge of office and should have joined in his transferred post and only because of his continued defiance, the State authorities had to direct the Relieving Officer to take over unilateral charge of office and when such charge is taken over at 4 P.M. on 3.3.2009, there cannot be any contempt of the status quo order passed by the court on 4.3.2009, as the reliever had joined in the post held by the petitioner, a day prior to the status quo order of this Court. 9. On scrutiny of the charge take over records of the Relieving Officer and other contemporaneous documents, this Court feels that the respondent authorities have not dealt with the matter in a competent manner. If the Relieving Officer had unilaterally joined on 3.3.2009, there was no need for the Director of Agriculture to record in the Communication signed on 6.3.2009 (Annexure-VIII) that the petitioner is still attending Office in the Directorate at Khanapara. Although several documents have been presented to show that Kumud Chandra Bhattacharjee had unilaterally taken over charge of the office of Administrative Officer on 3.3.2009, lingering suspicion still remains as to whether the Relieving Officer took over charge on 3.3.2009 as is claimed. This is because of the manner in which the charge take over is documented and also because of the facts disclosed in the correspondences exchanged between the Government and the Director of Agriculture. For instance, the letter dated 3.3.2009 (Annexure-V) issued by the secretary is shown to have been received in the office of the Directorate of Agriculture on 7.3.2009 at 1:40 P.M. Of course the letter dated 3.3.2009 marked as Annexure-V is a copy endorsed to the writ petitioner and it is quite possible that the addressee received the said letter on 3.3.2009 itself, to enable the Relieving Officer to take charge of office in the same afternoon on 3.3.2009. 10. 10. Under the provisions of Contempt of Courts Act, 1971 hereinafter referred to as the "Contempt Act" if a punishment is to be inflicted, the court must come to a definite conclusion that there has been willful disobedience of the orders of court. Although there is some suspicion on the claim that the Relieving Officer took over unilateral charge in the afternoon on 3.3.2009, we are unable to positively conclude that charge Was not so taken over on 3.3.2009. Without such a definite conclusion, it would naturally be difficult to hold that there has been willful disobedience of the status quo order passed by the Division Bench of this Court on 4.3.2009. 11. After careful consideration of the contention raised and also on the reasoning given above, we cannot hold that the respondents are in willful contempt of the status quo order dated 4.3.2009 passed by this Court, although it is also apparent that the respondents have dealt with the matter, in an inefficient manner. In such circumstances, we deem it appropriate to conclude this proceeding by recording that the respondents be warned to be careful in dealing with such matters in future. It is ordered accordingly.