Point of Law: Service Law – Principle of waiver - whether a party has waived its rights or not, it will be relevant to consider the conduct of a party. For establishing waiver, it will have to be established, that a party expressly or by its conduct acted in a manner, which is inconsistent with the continuance of its rights

JUDGMENT :

Heard Mr. I. Choudhury, learned senior counsel, assisted by Mr. A.K. Baruah, learned counsel for the petitioner and Mr. J.K. Goswami, learned Addl. Senior Govt. Advocate appearing for the respondent nos. 1 to 3.

2) Mr. P.J. Saikia, the learned counsel who had entered appearance on behalf of the respondent no. 3 and 4, i.e. the Biswanath Chariali Municipal Board and its Chairman, is present and has submitted at the outset that during the pendency of this writ petition, the term of the said Board had expired and the said Board has been taken over by the Deputy Commissioner, Biswanath Chariali and the affairs of the respondent no. 3 i.e. the Biswanath Municipal Board is now run by the Deputy Commissioner through a nominated officer and therefore, at present there is no Chairman i.e. respondent no. 4. Accordingly, it is submitted that although he is on record for respondent nos. 3 and 4, but as the respondent no. 3 is being controlled by the State, for all intents and purport, the Govt. Counsel would ideally have to represent the said respondent nos. 3 and 4. On a perusal of the record, it is seen that the affidavit-in-opposition on behalf of the respondent nos. 3 and 4 was signed and sworn by the then Chairman on 08.06.2018 and the same was filed before this Court by Mr. Bikash Sharma, the learned counsel on 10.07.2018. There is no record of any vakalatnama filed by the learned counsel for the respondent nos. 3 and 4 along with or prior to filing of the affidavit-in-opposition. However, on record is a vakalatnama signed by the Chairperson of Biswanath Municipal Board, which was filed on behalf of the respondent nos. 3 and 4 by Mr. M.R. Adhikari and Mr. P.N. Sharma, learned counsel. The Court is unable to find vakalatnama of Mr. P.J. Saikia, learned counsel on record.

3) Be that as it may, in brief, the case projected in this writ petition is that on 27.09.1985, the petitioner was initially appointed as the Tax Collector in the office of the respondent no.3, previously known as Biswanath Chariali Town Committee. On 03.10.1996, he was promoted to the post of Assistant Tax Darogaand that on 29.08.2005, the petitioner was promoted to the post of Tax Daroga. On 17.01.2011, the respondent no. 4 issued a show cause notice to the petitioner as to why disciplinary action will not be taken against the petitioner for violation of office discipline alleging indiscipline. The petitioner had submitted his reply on 24.01.2011. It is projected that without affording any opportunity of hearing to the petitioner, by an office order dated 05.01.2012, the Chairman (respondent no. 4) had demoted the petitioner to the post of Assistant Tax Daroga, however, at the existing scale of pay and another person was appointed in his place. Thereafter, by another order dated 21.06.2012, the respondent no. 4, on the basis of a purported letter of confession dated 20.01.2011, held that despite of several warnings and notices, the petitioner had not rectified his character for which the office had to suffer financial loss and that the petitioner had violated the office discipline/norms in spite of several warnings and accordingly, in public interest, the petitioner was given compulsory retirement from the post of Assistant Tax Daroga with immediate effect. The aggrieved petitioner had approached this Court by filing W.P.(C) 3407/2014 and this Court by judgment and order dated 12.10.2015, had set aside and quashed the orders dated 05.01.2012 and 26.06.2012 and direction was issued to reinstate the petitioner in service with full back wages. The petitioner had submitted his representation before the respondent no. 4 along with a copy of the order of this Court. On receipt of the copy of the order of this Court, the respondent no. 4 by an order dated 26.11.2015, asked the petitioner to join in his post w.e.f. 01.12.2015 and further stated that as regards back wages, decision would be taken after discussing with the petitioner.

4) It is projected that the petit