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2019 DIGILAW 628 (GAU)

Tikendrajit Borah v. State of Assam

2019-05-20

MANISH CHOUDHURY

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JUDGMENT : MANISH CHOUDHURY, J. 1. Heard Mr. A. Dasgupta, learned senior counsel assisted by Mr. B. Das, learned counsel appearing for the petitioner as well as Mr. N. Sarma, learned Standing Counsel, Elementary Education Department appearing for respondent nos. 1, 4 and 5. None, however, appears for respondent nos. 2 and 3. 2. In this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the order bearing Memo No. BEEO/BNC/2012/1193-97 dated 22.01.2014 passed by the respondent no. 4 i.e. the Block Elementary Education Officer (BEEO), Biswanath Education Block, Biswanath Chariali, District- Sonitpur. By the said impugned order dated 22.01.2014, the BEEO had released the salary of the petitioner after having a wage cut for the day, 04.06.2013 due to unauthorised absence after giving a warning, acting pursuant to a letter under Memo No. BNC-2/2012/PT-1/71 dated 09.01.2014 of the Additional Deputy Commissioner holding the charge of Sub-Divisional Officer, Biswanath Chariali on the proposal made by the said BEEO. 3. The facts leading to the passing of the impugned order and institution of the writ petition are stated here under. The petitioner was initially appointed as an Assistant Teacher in Mikir Block Prathamik Vidyalaya in the year 1986 when the school was at a venture stage. Consequent to provincialisation of the school on 19.11.1991, the service of the petitioner was also provincialised. Later on, the petitioner became Head Master of the school. On 04.06.2013, the respondent no. 2 i.e. the Sub-Divisional Officer (S.D.O), Biswanath Chariali paid a visit to the school at about 12-30 p.m. and during his said visit, he did not find any teacher including the petitioner or any student in the school premises. The S.D.O. then instructed the BEEO, Biswanath to issue letters to the Head Master i.e. the petitioner and the other teachers to know as to why the school was not functioning at about 12-30 p.m. on 4.6.2013. On such instruction, the BEEO, Biswanath issued letters on 4.6.2013 to the petitioner and other Assistant Teachers of the school to show cause by 2-00 p.m. on 05.06.2013 about their absence in the school on 04.06.2013 and as to why departmental action should not be taken. On such instruction, the BEEO, Biswanath issued letters on 4.6.2013 to the petitioner and other Assistant Teachers of the school to show cause by 2-00 p.m. on 05.06.2013 about their absence in the school on 04.06.2013 and as to why departmental action should not be taken. Responding to the said letter of the BEEO, the petitioner submitted his reply on 5.6.2013 stating that on 4.6.2013 he attended the school in time and at 11-30 a.m., he had to leave for census enumeration job as he was appointed to act as an Enumerator for conducting the field work of the 6th Economic Census, 2012. The petitioner further stated that the duty to look after the school was entrusted to another Assistant Teacher as the third Assistant Teacher was also absent due to her D.Ed. examination. The petitioner stated that it was for the second Assistant Teacher to show cause as to why he closed the school on 04.06.2013 at about 12-30 p.m. Subsequent to submission of reply by the petitioner, the petitioner found that the S.D.O. instructed the Treasury Officer not to pass the salary bill of the petitioner. The petitioner cited that the S.D.O. concerned was holding a grievance against him in view of the petitioner's objection to a letter dated 14.11.2012 sent to him by the BEEO on the instruction of the S.D.O. By the said letter dated 14.11.2012, sent to all Head Masters/Assistant Teachers of Primary/Middle-English/Madrasa Schools, the BEEO wrote that "Biswanath Festival" would be held on 24.11.2012 and 25.11.2012 under the supervision of the S.D.O., Biswanath and to make the festival successful, all the teachers of the school were asked to contribute Rs. 100/- and to submit the collection to the BEEO on 22.11.2012. The BEEO in the said letter had mentioned that the instruction to collect the said amount of Rs. 100/- was on the oral advise of the S.D.O. and the matter was asked to be treated as very important. The petitioner had urged that as he raised his objection against such collection, the S.D.O. had taken the unauthorised action of stoppage of his salary maliciously when he got the opportunity. Having found his salary stopped from the month of July 2013, the petitioner submitted a representation before the BEEO requesting him to release the salary. The petitioner had urged that as he raised his objection against such collection, the S.D.O. had taken the unauthorised action of stoppage of his salary maliciously when he got the opportunity. Having found his salary stopped from the month of July 2013, the petitioner submitted a representation before the BEEO requesting him to release the salary. When the authorities did not pay any heed to the representation so submitted by the petitioner and did not release the salary for over four months, the petitioner submitted an application under Right to Information Act (RTI) on 11.11.2013 seeking information as regards non-payment of his salary. 4. In response, the BEEO on 06.12.2013 furnished reply to the application of the petitioner filed under the RTI Act. In the said reply, it was mentioned that the monthly salary of the petitioner was stopped from June, 2013 till that date in terms of an order contained in letter no. BNC-2/PT-1/263(K) dated 11.6.2013 of the S.D.O., Biswanath. The salary so stopped, could not be released as no instruction was received from the S.D.O. It was mentioned that there was no rule that survey could be carried out without performing the school duties and the second Assistant Teacher had stated in his reply that on 4.6.2013, the Head Master i.e. the petitioner did not attend the school. As the replies were found unacceptable, the same were sent to the S.D.O. on 06.06.2013 for his advise vide letter No. II-11/BEEO/BNC/2010/811. It was stated that the S.D.O. vide his letter No. BNC-2/2012/PT-1/263 informed the Deputy Commissioner, Sonitpur about the matter and instructed the Treasury Officer through his letter No. BNC-2/2012/PT-1/263(K) for stoppage of monthly salary of the petitioner. Citing the same as a reason for non-payment of monthly salary of the petitioner, the BEEO had further informed that such non-payment of salary was not intimated from the office of the BEEO to the Treasury Officer. As the instruction was sent by the S.D.O. to the Treasury Officer, the order of stoppage of salary could not be revoked by the BEEO and for the said reason, the monthly salary of the petitioner could not be paid. 5. Thereafter on 22.01.2014, the BEEO issued the impugned order. As the instruction was sent by the S.D.O. to the Treasury Officer, the order of stoppage of salary could not be revoked by the BEEO and for the said reason, the monthly salary of the petitioner could not be paid. 5. Thereafter on 22.01.2014, the BEEO issued the impugned order. In the impugned order, it was reflected that a proposal was made by the BEEO and on such proposal, the Additional Deputy Commissioner holding the charge of S.D.O. issued a letter under Memo No. BNC-2/2012/PT-1/71 on 9.1.2014, whereby, the salary of the Head Master, Mikir Block Prathamik Vidyalaya i.e. the petitioner was released after having a wage cut for the day on 4.6.2013 due to his unauthorized absence. The petitioner was also warned that being a teacher, he should not tell a lie in future so as to misdirect the administrative authority. 6. Aggrieved by the impugned order, the petitioner has assailed the same as being illegal in as much as the impugned order was not preceded by any notice to show cause or by a charge-sheet, as contemplated under the extant rules. The issuance of warning has casted a stigma on the petitioner illegally in violation of the principle of natural justice. The BEEO as well as the S.D.O. does not have the authority and jurisdiction to pass the impugned order. 7. The respondent no. 2 i.e. the Sub-Divisional Officer (S.D.O.), Biswanath Chariali had filed a counter affidavit wherein he stated that on a visit by him to the school at about 12-30 p.m. on 4.6.2013 the school was found closed. Hence, the concerned BEEO was asked to make an enquiry and to submit a report to his office. The BEEO submitted a report where he stated that the petitioner and other teachers were asked to submit reasons for their unauthorized absence on 04.06.2013. On receipt of the report from the BEEO along with explanations furnished by the petitioner and other teachers of the school, the matter was forwarded to the Deputy Commissioner, Sonitpur vide letter No. BNC-2/2012/PT-1/263 dated 11.06.2013 with a direction to the Treasury Officer, Biswanath Treasury not to pass the salary bill of the petitioner for the time being, as the explanations submitted by the petitioner and the other Assistant Teacher of the school were found to be contradictory to each other. While the petitioner mentioned that he left the school by 11-30 am. While the petitioner mentioned that he left the school by 11-30 am. for Economic Survey as Enumerator by handing over charge to the second Assistant Teacher, the second Assistant Teacher, in his reply, mentioned that the Head Master i.e. the petitioner was absent on that day. The respondent no. 2 found absence of the petitioner unauthorized as the Enumerators, during their training course, were asked to perform their census duty in addition to their normal duties. The Deputy Commissioner, Sonitpur was informed of the matter as the Enumerators were appointed by the Deputy Commissioner. It was averred that the action of stoppage of salary of the petitioner was an interim measure and the petitioner's salary was released on completion of the enquiry process by the competent authority. As regards the contribution for Biswanath Festival, the respondent no. 2 sought to justify the same stating that the same was an appeal to contribute towards celebration of the festival made by the celebration committee and the same was not mandatory, which plea appears to be a spacious one given the authority he was seen to be wielding. He further mentioned that the BEEO was finally directed to release the salary of the petitioner vide a letter No. BNC-2/2012/PT-1/71 dated 09.01.2014 and it was reported by the BEEO that salary of the petitioner had already been released. 8. I have duly considered the submissions made by the learned counsels for the parties and also perused the materials on record. 9. As could be noticed from the impugned order, the petitioner was punished for his unauthorised absence on 04.06.2013. In case of unauthorised absence being an act of indiscipline, two courses are open to the appointing authority/disciplinary authority. The first is to condone the unauthorised absence by accepting the explanation and sanctioning leave for the period of unauthorised absence in which event the alleged act of misconduct stands condoned. The second is to treat the unauthorised absence as a misconduct, hold a disciplinary enquiry and impose a punishment for the misconduct. But, such a disciplinary enquiry is to be held by the appointing authority/disciplinary authority. 10. The Assam Elementary Education (Provincialisation) Rules, 1977 (the Rules, in short) regulate the recruitment and condition of service of teachers of the elementary schools which have been provincialised under the Assam Elementary Education (Provincialisation) Act, 1974 (the Act, in short). But, such a disciplinary enquiry is to be held by the appointing authority/disciplinary authority. 10. The Assam Elementary Education (Provincialisation) Rules, 1977 (the Rules, in short) regulate the recruitment and condition of service of teachers of the elementary schools which have been provincialised under the Assam Elementary Education (Provincialisation) Act, 1974 (the Act, in short). The said Rules have been framed in exercise of the powers conferred by the Proviso of Article 309 of the Constitution of India. As the petitioner is an employee of a school provincialised under the Act, his condition of service is regulated and governed by the aforesaid rules. Under the rules, the Director of Elementary Education, Assam is the appointing authority as well as the disciplinary authority. Neither the Deputy Commissioner of the district nor the Sub-Divisional Officer of the concerned sub-division where the school is located is the appointing authority nor the disciplinary authority. One can not initiate any disciplinary action and impose any penalty, as prescribed in the Assam Services (Discipline and Appeal) Rules, 1964, if he is neither the appointing authority nor the disciplinary authority. As such, it is not within the ambit of the authority and jurisdiction of either the Deputy Commissioner of the district or the Sub-Divisional Officer of the concerned subdivision where the school is located, to take any disciplinary measure against an employee whose conditions of service are regulated by the aforesaid rules. If any act of misconduct is noticed on the part of such an employee by any such authority like the jurisdictional Deputy Commissioner and/or the S.D.O., such authority being in-charge of overall administration of a district or the subdivision submitting a report in that regard, can suggest to the appointing authority and/or the disciplinary authority of such an employee to take disciplinary measure indicating about the act of misconduct found to have been committed by such an employee. 11. It is further noticed from the impugned order dated 22.01.2014 that the BEEO did not even forward a copy of the impugned order to the Director of Elementary Education, Assam. 11. It is further noticed from the impugned order dated 22.01.2014 that the BEEO did not even forward a copy of the impugned order to the Director of Elementary Education, Assam. A perusal of the impugned order and the reply dated 06.12.2013 given under the RTI Act, makes it clear that the BEEO, albeit an authority superior to the petitioner in the Education Department, acted at the behest of the Sub-Divisional Officer who instructed him to stop the salary of the petitioner which continued for a number of months thereafter. There appears to be no material on record wherefrom it could be inferred that the Director of Elementary Education, Assam was made aware by any of these authorities about the action they had taken against the petitioner. It appears that the BEEO instead of intimating the matter about the alleged misconduct of unauthorised absence on the part of the petitioner to the departmental higher authority, acted at the behest and instruction of an authority who is neither a departmental authority nor an authority authorised to take disciplinary action against the petitioner or to issue warning against the petitioner. There appears to be lack of independent application of mind on the part of the BEEO in the present case by way of abdication of his duties and responsibilities and the BEEO had passed the impugned order which contained the punishment for unauthorised absence without such power being vested in him and without being preceded by any disciplinary proceeding in accordance with law. 12. From the foregoing discussions, the inevitable conclusion is that the impugned order dated 22.01.2014 is not sustainable being illegal and arbitrary and the same is liable to be set aside, which is accordingly done. The writ petition stands, accordingly, allowed. There shall, however, be no order as to cost.