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2020 DIGILAW 716 (GAU)

Bipul Mech v. State of Assam

2020-10-15

M.R.PATHAK

body2020
ORDER : M.R. Pathak, J. 1. Heard Mr. Abdur Razzaque Bhuyan, learned counsel for the petitioner and Mr. Nayanjyoti Khataniar, learned Standing Counsel, Education for respondent Nos. 1 to 4. 2. On being selected by the State Level Selection Committee, the Director of Elementary Education, Assam by an order dated 28.10.2015, appointed the petitioner as a Junior Assistant and posted him in the office of the Deputy Inspector of Schools, Jorhat (Annexure-1). In August, 2017, the petitioner was transferred to the office of the Deputy Inspector of School, Golaghat in the same capacity and since then he is serving in the said office. 3. By an order dated 29.08.2017 the Deputy Inspector of Schools, Golaghat entrusted the petitioner with official works of computer for online salary with immediate effect and until further order (Annexure-2). Subsequent to that the Deputy Inspector of Schools, Golaghat by order dated 25.10.2017 entrusted the petitioner with the matter of New Pension Scheme (NPS, in short), preparation of Pension Bills of NPS, Retired and Expired Teacher, w.e.f. 01.11.2017. By the said order dated 25.10.2017, the petitioner was also directed to prepare Pension and other Bills of NPS Retired and Expired Teachers through the Head Assistant as well as to prepare monthly Salary Bills of the Office Staff, in addition to his own duties (Annexure-3). 4. For the alleged misappropriation of an amount of Rs. 2,96,390/- pertaining to random deduction from the arrear House Rent Bills of the teachers of Lower Primary Schools under the Golaghat Treasury and depositing the entire amount in his personal account in the Golaghat Branch of State Bank of India, the District Elementary Education Officer, Golaghat by communication dated 8.11.2018 issued a show cause notice to the petitioner as to why departmental disciplinary action should not be initiated against him for his said action and asked him to submit his reply within two days from the receipt of the same (Annexure-4). 5. 5. On the recommendation of Deputy Inspector of Schools, Golaghat and subject to the approval of the Director of Elementary Education, Assam, the District Elementary Education Officer, Golaghat by order dated 19.11.2018 suspended the petitioner from service with immediate effect for the charges of (i) misappropriation of Government money, (ii) misconduct of official rules and procedure, (iii) acted fraudulent in case of salary, arrear salary, house rent arrear etc., (iv) non-cooperation with the superior officer and (v) unauthorized absence in office duty (Annexure-5). 6. By order dated 26.11.2018 the District Elementary Education Officer, Golaghat directed the petitioner to handover the files and documents that he had during his tenure to the Deputy Inspector of Schools, Golaghat intimating that failure on his part to comply with the same, necessary and lawful action shall be taken against him (Annexure-6). 7. On 18.03.2019, the District Elementary Education Officer, Golaghat issued another show cause notice to the petitioner as to why departmental disciplinary proceeding/action should not be drawn up against him for the five charges noted above, asking him to submit his reply within three days from the date of receipt of the same (Annexure-7). 8. Pursuant to the said show cause notice dated 18.03.2019, it is stated that though the petitioner on 26.03.2019 submitted his reply (Annexure-8), but the respondents in the Elementary Education Department neither considered his said reply nor initiated any disciplinary proceeding against him rather continued to put him under suspension from service. 9. Petitioner stated that on 29.05.2019, he submitted a representation before the Director of Elementary Education, Assam stating that the District Elementary Education Officer, Golaghat is not empowered to suspend the petitioner, a Junior Assistant appointed by the Director of Elementary Education, Assam and that after placing him under suspension by order dated 19.11.2018 till the date of filing the said representation, no charge memo has been furnished to him. As such, in his said representation the petitioner prayed to set aside the order of his suspension dated 18.11.2018 and to reinstate him in service (Annexure-9). It is stated that his said representation is also pending for disposal. 10. As such, in his said representation the petitioner prayed to set aside the order of his suspension dated 18.11.2018 and to reinstate him in service (Annexure-9). It is stated that his said representation is also pending for disposal. 10. As nothing was forthcoming, being aggrieved with such inaction on the part of the respondents in the Elementary Education Department, keeping him under suspension since 19.11.2018, without initiating any disciplinary action against him, furnishing him with charge Memo, containing the relevant charge(s) with list of witnesses, list of documents, appointment of enquiry officer and presenting officer etc., as required under the relevant Rules in force and without reviewing his suspension from service, the petitioner on 17.06.2019 approached this Court by preferring this writ petition praying amongst others for setting aside his suspension order dated 19.11.2018 issued by the District Elementary Education Officer, Golaghat (Annexure-5), to set aside and quash the alleged charge memo dated 18.03.2019 (Annexure-7) and to reinstate him in service with all service benefits. 11. The petitioner contended that the said show cause notice dated 18.03.2019 (Annexure-7) that was served upon him, neither contained any list of witnesses nor contained list of documents etc. As such any disciplinary proceeding initiated against him on the basis of said charge memo dated 18.03.2019 being violative of the provisions of the Assam Services (Discipline & Appeal) Rules, 1964, should be set aside and quashed. 12. The petitioner also contended that as required under the provisions of the Assam Services (Discipline & Appeal) Rules, 1964 and its manual, within 90 (ninety) days from the date of his date of suspension on 19.11.2018 the respondents in the Elementary Education Department should have reviewed whether he is required to be placed under further suspension or not. But it is stated no such exercise has been carried out by those respondents. 13. The petitioner further contended that as per the law laid down by the Hon'ble Apex Court in the case of Ajay Kumar Choudhury Vs. Union of India, reported in (2015) 7 SCC 291 , the charge memo to a suspended incumbent should be served upon him/her by the concerned disciplinary authority within 90 (ninety) days from the date of his/her suspension. Union of India, reported in (2015) 7 SCC 291 , the charge memo to a suspended incumbent should be served upon him/her by the concerned disciplinary authority within 90 (ninety) days from the date of his/her suspension. Petitioner submitted that even if it is assumed that the show cause notice dated 18.03.2019 is a valid charge memo, the same would not validate his suspension, as the same was issued much after 90 (ninety) days. Petitioner also stated that since the order of his suspension dated 19.11.2018 to February 2019 the respondents in the Elementary Education Department did not pay his subsistence allowance. 14. By order dated 25.06.2019, the Court issued Notice to the respondents in the Elementary Education Department. But the respondents neither filed any affidavit in the matter nor placed any records before the Court pertaining to suspension, review and initiation of disciplinary action against the petitioner. 15. As per the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 as well as the Manual for Disciplinary Proceeding, the decision of the Hon'ble Apex Court in the case of Ajay Kumar Choudhury (supra) and the decision of a Division Bench of this Court in the Case of Indian Institute of Technology Vs. Aloke Kr. Ghosal & Anr. reported in 2017 (5) GLT 132, it is well settled that when an authority suspends its employee, the said authority must review such suspension of the employee concerned within 90 (ninety) days to determine as to whether the said employee is required to be placed under further suspension or not. 16. In the present case, the respondents in the Elementary Education Department did not place any records before the Court to establish or to prove that after placing the petitioner under suspension by order dated 19.11.2018 (Annexure-5), it reviewed his suspension within 90 (ninety) days from the said order dated 19.11.2018, so as to keep him under further suspension till date. 17. Moreover, the respondents in the Elementary Education Department have also failed to place before the Court as to whether a valid charge memo as provided under the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 was ever furnished to the petitioner within 90 (ninety) days from the date of placing him under suspension by order dated 19.11.2018 (Annexure-5). 18. 18. From the appointment order of the petitioner as Junior Assistant, issued by the Director of Elementary Education, Assam on 28.10.2015 (Annexure-1), it can be seen that he is a Government employee in the Elementary Education Department of the State appointed against a substantive vacant sanctioned post. As such from the perusal of the communication dated 18.03.2019 of the District Elementary Education Officer, Golaghat (Annexure-7) the same is found to be an invalid show cause notice/charge memo to the petitioner under the provisions of the Assam Services (Discipline and Appeal) Rules, 1964, as it did not contain the list of witnesses, list of documents etc. Any disciplinary proceeding initiated against the petitioner on the basis of said show cause notice dated 18.03.2019 (Annexure-7) being in violation of the said 1964 Disciplinary and Appeal Rules shall be bad in law, illegal and void ab initio. 19. For the reasons above, the impugned Order under No. DEEO/GLT/M. Appropriation (Bipul Mech)/2018-19/265/891-A dated 19.11.2018 issued by the District Elementary Education Officer, Golaghat suspending the petitioner from service (Annexure-5) being not sustainable in law on completion of its 90 (ninety) days on 16.02.2019, is hereby set aside and quashed. 20. The respondents in the Elementary Education Department of the State shall reinstate the petitioner as Junior Assistant or any other equivalent post forthwith. However, on his reinstatement in service, the respondents shall decide regarding posting of the petitioner, as it may deem fit and proper. 21. It is also made clear that the respondents in the Elementary Education Department of the State are at liberty to initiate and complete Disciplinary Proceeding against the petitioner, as per the provisions of the Assam Services (Discipline and Appeal) Rules, 1964. 22. With the above observation and direction, this writ petition stands allowed, to the extent above.