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2017 Supreme(Gau) 1403

IN THE HIGH COURT OF GAUHATI
A.K.GOSWAMI, J.
Makibar Rahman - Appellant
Vs.
State of Assam & Ors. - Respondents
W.P.(C) No. 3582 of 2017
Decided On : 16-09-2017

Advocates:
Advocate Appeared:
For the Appellant : K.N. Choudhury, J. Patowary
For the Respondents: D. Saikia, D. Upamanyu, S.B. Sarma

Headnote:

Constitution of India , 1950 - Article 226 - Post of Assistant Labor - Competent authority to dispose - Transfer order - Vacation/alteration/modification - Petitioner who was holding post of Assistant Labor was transferred and by said order respondent who was holding post of Assistant Labor Commissioner attached to Head Quarter was transferred as Assistant Labor Commissioner and she was also allowed to hold charge of Assistant Labor Commissioner Head Quarter and by aforesaid order some other persons in rank of Assistant Labor Commissioner and Labor Inspector were also transferred and Against said order - Petitioner had submitted a representation to Additional Chief Secretary to Government of Assam Labor and Welfare Department and petitioner had approached this Court earlier by filing a writ application which was registered as WP and this Court by an order disposed of writ petition at motion stage itself directing competent authority to dispose of representation by a speaking order and providing further that till a decision is taken on representation transfer order shall not be enforced against petitioner - Held, When a proposal is put up before Chief Minister for ex-post facto approval and same is not approved it cannot be countenanced that order issued for which ex-post facto approval is sought has to be given effect to and order of subordinate authority cannot prevail over decision of Chief Minister and when a representation is directed to be disposed of - Court disposal of representation cannot be reduced an empty formality and in instant case grounds taken in representation by petitioner was not even dealt with and a public order publicly made has to be read as it is and reasons cannot be supplemented by way of an affidavit later on and observation made in order that Chief Minister had subsequently approved order of transfer is also found to be not correct - In view of above discussion order is set aside and quashed and Additional Chief Secretary to Government of Assam Labor & Welfare Department is directed to reconsider matter in its entirety in light of observations made in this judgment & order Till such time an order is passed by Additional Chief Secretary to Government of Assam Labor & Welfare Department as directed petitioner shall be allowed to continue as Assistant Labor Commissioner and writ petition stands allowed to extent as indicated above and in view of aforesaid determination I.A - Writ petition is disposed of

JUDGMENT :

Arup Kumar Goswami, J.

1. Heard Mr. K.N. Choudhury, learned senior counsel, assisted by Mr. J. Patowari for the petitioner. Also heard Mr. D. Saikia, learned Additional Advocate General, Assam, assisted by Mr. D. Upamanyu, appearing for the respondent Nos. 1, 2, 3, 4 & 5 and Mr. S.B. Sarma, learned counsel, appearing for the respondent No. 6. By an order dated 13.04.2017 (Annexure-3 of the writ petition) passed by the Additional Chief Secretary to the Government of Assam, Labour & Welfare Department, Guwahati, the petitioner, who was holding the post of Assistant Labour Commissioner, Guwahati, was transferred to Nagaon. By the said order, the respondent No. 6, who was holding the post of Assistant Labour Commissioner, attached to Head Quarter, Guwahati, was transferred as Assistant Labour Commissioner, Guwahati and she was also allowed to hold the charge of Assistant Labour Commissioner, Head Quarter. By the aforesaid order, some other persons in the rank of Assistant Labour Commissioner and Labour Inspector were also transferred. Against the said order dated 13.04.2017, the petitioner had submitted a representation dated 18.04.2017 (Annexure-4 of the writ petition) to the Additional Chief Secretary to the Government of Assam, Labour and Welfare Department, Dispur, Guwahati.

2. As the said representation was not attended to, the petitioner had approached this Court earlier by filing a writ application, which was registered as WP(C) No. 2429/2017 and this Court, by an order dated 26.04.2017, disposed of the writ petition at the motion stage itself, directing the competent authority to dispose of the representation dated 18.04.2017 by a speaking order, and providing further that till a decision is taken on the representation, the transfer order dated 13.04.2017 shall not be enforced against the petitioner. Subsequently, an order dated 07.06.2017 (Annexure-7 of the writ petition) was passed by the Additional Chief Secretary to the Government of Assam, Labour & Welfare Department, whereby the representation of the petitioner was not favourably considered and he was directed to join in his new place of posting as Assistant Labour Commissioner, Nagaon.

3. Challenging the order of transfer dated 13.4.17 as well as the order dated 7.6.17, the instant writ application is filed by the petitioner.

4. While entertaining the writ application, noticing that the issues raised by the petitioner in the representation dated 18.04.2017 had not been considered, this Court, by an order dated 14.06.2017, had stayed the order dated 07.06.2017.

5. The respondent Nos. 1 to 4 had filed an application on 16.08.2017, praying for vacation/alteration/modification of the aforesaid interim order dated 14.06.2017, which was registered as IA (C) No. 2834/2017.

6. In the writ petition, the respondent No. 5 had filed an affidavit on 25.07.2017 and the writ petitioner had also filed an affidavit-in-reply to the said affidavit-in-opposition of the respondent No. 5. The respondent No. 1 had also filed an affidavit in the writ petition on 28.08.2017.

7. Order dated 28.08.2017 passed in the present writ petition and IA (C) No. 2834/2017 goes to show that a consensus was arrived at by and between the parties that the writ petition be taken up for disposal and accordingly, it was observed that an attempt would be made to dispose of the writ petition on 05.09.2017. On 05.09.2017, this Court requested Mr. D. Saikia, learned Additional Advocate General, Assam, to produce the relevant records while fixing the case on 07.09.2017. On 07.09.2017, records were produced and after some hearing had progressed, Mr. Saikia had prayed for taking up the matter for further consideration on 08.09.2017 in order to enable him to obtain further instructions. The interim order was continued all along and the hearing was concluded on 08.09.2017.

8. The case of the petitioner, necessar











































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