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2019 Supreme(Gau) 1079
IN THE HIGH COURT OF GAUHATI
MANISH CHOUDHURY, J.
Tikendrajit Borah - Appellant
Versus
State of Assam and Ors - Respondent
W.P. (C) No. 631 of 2014
Decided On : 20-05-2019
For the Appellant :A. Dasgupta and B. Das, Advocates
For the Respondent:N. Sarma, Advocate
Headnote:
Constitution of India – Article 226 309 – Assam Elementary Education (Provincialisation) Rules, 1977 – Assam Elementary Education (Provincialisation) Act, 1974 – Assam Services (Discipline and Appeal) Rules, 1964 – Wage Cut in Salary – The petitioner has assailed the order bearing Memo passed by the respondent no. 4 i.e. the Block Elementary Education Officer (BEEO) – By the said impugned order, the BEEO had released the salary of the petitioner after having a wage cut for the day, due to unauthorised absence after giving a warning, acting pursuant to a letter under Memo of the Additional Deputy Commissioner holding the charge of Sub-Divisional Officer, on the proposal made by the said BEEO – 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 – Held, It is further noticed from the impugned order 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 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, 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 –From the foregoing discussions, the inevitable conclusion is that the impugned order 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 – Petition Allowed
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. 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 unauth
