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2016 DIGILAW 781 (GAU)

Khangendra Nath Das v. State of Assam

2016-08-16

MANOJIT BHUYAN

body2016
JUDGMENT : Manojit Bhuyan, J. 1. Heard Mr. S.K. Das, learned counsel for the petitioner as well as Mr. U.K. Nair, learned counsel representing Respondent No. 2. Mr. B.D. Das, learned senior counsel represents Respondent Nos. 4 & 5, whereas Mr. S. Saikia, learned counsel represents Respondent No. 6. Mr. A. Dasgupta, learned senior counsel represents Respondent No. 7. In so far as Respondent Nos. 1 & 3 are concerned, there is no State counsel present today to represent them. 2. The petitioner was appointed as the State Secretary, Bharat Scouts & Guides, Assam vide Notification dated 01.04.2014, issued under the hand of the State Chief Commissioner, Bharat Scouts & Guides, Assam. The term of appointment was for one year from the date of joining. On expiry of the initial term, another Notification was issued on 09.04.2015 extending his services for another year w.e.f. 02.04.2015, on the same terms and conditions as mentioned in the earlier appointment order. 3. Petitioner is aggrieved of the Order/Notification dated 22.01.2016, whereby he was placed under suspension, in purported exercise of powers under Rule 52(5) (w) of the Bharat Scouts & Guides Rules (for short, "the Rules"). On the said facts, prayer in the writ petition is for setting aside the suspension order dated 22.01.2016 and for a direction to the respondent authorities to allow the petitioner to continue as State Secretary, Bharat Scouts & Guides, Assam on the strength of the extension order dated 09.04.2015. 4. On the date of moving this writ petition, this Court, while issuing Notice, had also stayed the operation of the suspension order dated 22.01.2016. On this count, Mr. B.D. Das, learned senior counsel submits that consequent upon stay of the Notification dated 22.01.2016, the petitioner was allowed to continue in service for the remaining period. Mr. B.D. Das also submits that going by the strict terms of the extension order dated 09.04.2015, the petitioner's tenure as State Secretary concluded on 01.04.2016. 5. Many an argument has been placed by Mr. S.K. Das, learned counsel for the petitioner that under the relevant Rules, the petitioner is entitled to serve as State Secretary for at least a period of 3(three) years which, according to him, would expire on 11.08.2017. Mr. S.K. Das also submits that the issue with regard to challenge made to the appointment of the Respondent No. 5 also needs to be determined by this Court. 6. Mr. S.K. Das also submits that the issue with regard to challenge made to the appointment of the Respondent No. 5 also needs to be determined by this Court. 6. Evidently, in the absence of further extension of service of the petitioner as State Secretary, his tenure in the said capacity came to an end on 1st April, 2016. There is no master and servant relationship existing on this date between the petitioner and the office of the Bharat Scouts & Guides, Assam. As on date, the petitioner is without locus to challenge the appointment of the Respondent No. 5. The temporary appointment of the petitioner as State Secretary have reached its full circle. 7. As regards the submission made that the petitioner is entitled to remain as State Secretary until 11.08.2017, it will be important to notice that the Notification dated 09.04.2015 granting him one year extension w.e.f. 02.04.2015 is not under challenge on grounds of being contrary to the Rules. The petitioner had accepted the extension granted up to 01.04.2015 knowing full well the end date of his appointment. At this stage, the petitioner cannot be allowed to lay claim that he is entitled to serve until 11.08.2017. 8. What remains to be decided is the legality and validity of the suspension order dated 22.01.2016. For determination thereof, reference is made to the Bharat Scouts & Guides Rules, more particularly, Rule 52 thereof. The order of suspension dated 22.01.2016 is shown to be issued in terms of Rule 52 (5)(w) of the Rules, which is a power given to the State Chief Commissioner to do all acts and things necessary for efficient functioning of the Office. There are no specific provisions dealing with conduct, discipline and imposition of penalties. Also, the Rules do not lay down any specific provision empowering the State Chief Commissioner to place the State Secretary under suspension. In the absence of specific provisions, the exercise of power by the State Chief Commissioner to initiate disciplinary proceedings and to place the State Secretary under suspension pending drawal of disciplinary proceedings, would tantamount to giving an unfettered discretion to the State Chief Commissioner. No such power flows out from Rule 52(5)(w) of the aforesaid Rules. To this end, the Notification dated 22.01.2016, whereby the petitioner was placed under suspension, cannot stand the scrutiny of law and is liable to be interfered with. 9. No such power flows out from Rule 52(5)(w) of the aforesaid Rules. To this end, the Notification dated 22.01.2016, whereby the petitioner was placed under suspension, cannot stand the scrutiny of law and is liable to be interfered with. 9. For all the aforesaid reasons, the Notification dated 22.01.2016 is held to be contrary to law, but having regard to the fact that the petitioner is no longer an employee of Bharat Scouts & Guides, Assam, the challenge made to the appointment of the Respondent No. 5 stands rejected on ground of lack of locus. 10. Writ petition stands accordingly disposed of. No cost.