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2018 DIGILAW 706 (GAU)

Prodip Choudhury v. State of Assam

2018-04-26

MANOJIT BHUYAN

body2018
JUDGMENT & ORDER : PARAG, J. 1. Heard Saikia, learned counsel for the petitioner as well as Mr. A. Deka, learned counsel representing all the respondents. 2. Petitioner served as an Assistant Teacher in Refugee L.P. School, Mariani in the district of Jorhat. Challenge is made to the order contained in the letter dated 29.10.2014 issued under the hand of the Under Secretary to the Government of Assam, Elementary Education Department instructing the Director of Elementary Education, Assam to remove the petitioner from service on ground of having remained absent from duties with effect from 17.06.2009 upto 2014 without any information. The primary grounds of challenge are that the order seeking his removal stands vitiated as there has been no compliance of the principle of natural justice in reaching the impugned decision. According to the petitioner, he was neither served with any Show Cause Notice nor supplied with any Statement of Allegations and/or with any list of witnesses or documents. Also, no disciplinary proceeding was initiated or held in which the petitioner was allowed to participate. 3. Stand taken by the Respondent No.2 i.e. the Director of Elementary Education, Assam in the affidavit-in-opposition are that the petitioner was unauthorizedly absent from duty with effect from 07.06.2009 on account of the fact that his wife, who was a Post Office agent, was absconding due to a financial scam committed by her. In this respect, a police case being Mariani P.S. Case No.75/2009 was also registered under Section 406/420/468 IPC. It is stated that on account of unauthorized absence of the petitioner, a departmental proceeding was drawn up and the said proceeding also stood completed. As per the Report of the Enquiry Officer, the petitioner was found absent from duty with effect from 07.06.2009. The Enquiry Officer i.e. the Additional Deputy Commissioner & I/C Deputy Inspector of Schools, Jorhat suggested that the period of absence of the petitioner be treated as a period without pay. This finds mention in the letter of the Addl. Deputy Commissioner dated 12.09.2012 addressed to the Director of Elementary Education, Assam. 4. Even if a view is taken that a disciplinary proceeding against the petitioner had taken place and the principles of natural justice was complied with, the penalty sought to be imposed upon the petitioner was that the period of absence is to be treated as a period without pay. 4. Even if a view is taken that a disciplinary proceeding against the petitioner had taken place and the principles of natural justice was complied with, the penalty sought to be imposed upon the petitioner was that the period of absence is to be treated as a period without pay. There is nothing on record to show that there has been reversal of the findings of the Enquiry Officer, converting the same to punishment of removal from service by following due process of law by the Disciplinary Authority. Although it is open to the authority concerned to disagree with the findings in the Enquiry Officer, such disagreement by way of enhancing punishment/penalty must be preceded by due notice and affording opportunity of hearing to the delinquent concerned. What has actually transpired in the instant case is that although the period of absence was treated to be counted as period without pay, the petitioner was slapped with the punishment that he be removed from service. This decision, on the very face of it is not sustainable in law. The extreme power of removal from service has been exercised by the respondent concerned by altogether ignoring due process of law. In this regard, the order contained in the letter dated 29.10.2014 cannot stand the scrutiny of law and is liable to be set aside, which is accordingly done. 5. On the setting aside of the order dated 29.10.2014, the respondent concerned shall take back the petitioner into service. In so far as the period of absence from 17.06.2009 is concerned, the petitioner has not placed any material to show otherwise. As such, no direction is made for payment of any dues to the petitioner for the period he remained absent. However, it is made clear that the period of absence shall be treated as on duty only for pensionary benefits. To the extent above, the writ petition stands allowed.