Point of Law: District Magistrate cannot be permitted under law and under an administrative system which is governed by constitution and Rule of law.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. S Borthakur, learned counsel for the petitioner. Also heard Mr. P.N. Sarma, learned standing counsel appearing on behalf of all the respondents.

2. As agreed to by the learned counsels for both the parties, these three writ petitions are taken up together for final disposal. Though no affidavit has been filed in WP (C) No. 5529/2022, Mr. P.N. Sarma, learned standing counsel, Elementary Education Department submits that the affidavit filed in WP (C) 6562/2022 as well as in WP (C) 1015/2021 shall cover the stand of the respondent authorities.

WP (C) 1015/2021

3. WP (C) 1015/2021 was filed on the background fact that the petitioner was appointed as Arabic Teacher in Mowlana Bhassani Memorial M.E. Madrassa under Gauripur Block (hereinafter referred to as School), in the year 1985, her service was regularised by the government on 06.02.1993 and though she has been discharging her duties since then, however, her salary has been stopped from the month of February, 2020.

4. The respondent employer in the aforesaid writ petition, took a stand that one Juran Ali Akand lodged a complaint against the writ petitioner alleging that the writ petitioner obtained a certificate by unfair means from Majechar High Madrassa by recording her date of birth as 24.04.1965 and on the basis of such certificate the date of birth of the petitioner was recorded in subsequent certificates issued by the authorities. But the petitioner’s date of birth ought to have been 31.01.1957 based on the admit card issued by SEBA. It was the further stand of the respondent that on verbal instruction of District Magistrate, Dhubri, the Additional District Magistrate conducted an enquiry into the matter and thereafter submitted an enquiry report on 02.01.2020 (Annexure-F) before the District Elementary Education Officer (DEEO). According to the respondent, such enquiry report reveals that the certificate issued by the Superintendent of Majechar High Madrassa in favour of the writ petitioner is not genuine at all. On the basis of such report, the DEEO directed the jurisdictional Block Elementary Education Officer (BEEO) not to release salary to the petitioner. Accordingly a direction was also issued to lodge an FIR against the petitioner and the FIR was lodged on 31.11.2020.

WP (C) 5529/2022

5. On disclosure of the aforesaid fact in the affidavit filed by the respondent employer, the petitioner preferred the second writ petition i.e., WP (C) 5529/2022 assailing the enquiry report submitted by the Additional District Magistrate.

WP (C) 6562/2022

6. While such writ petitions were pending, by an order dated 08.09.2022, the DEEO directed the jurisdictional BEEO to take action and lodge a fresh FIR against the petitioner for misleading and submitting fake school certificate and also to recover the entire overdrawn amount during the period of overstay with effect from 01.02.2007 to 28.02.2020. Accordingly, such order was challenged in WP (C) No. 6562/2022

7. Mr. S Borthakur, learned counsel for the petitioner assailing the enquiry report submits that the enquiry was conducted on the basis of allegations made by third party inasmuch as the enquiry officer is not competent to do such enquiry and such enquiry cannot be a basis of punitive action as same was not made by the employer of the petitioner. Therefore, such action on the part of the District Magistrate or the Additional District Magistrate and on the part of the employer is without jurisdiction.

8. It is also the contention of Mr. Borthakur that an enquiry was conducted and a conclusion was drawn that the transfer certificate in question was a fake one however, such enquiry was done behind the back of the petitioner and a reading of the enquiry itself shall show that there is no material before the enquiry officer to make such a conclusion. Accordingly, Mr. Borthkaur submits that in view of the aforesaid, the entire enquiry report is liable to set aside and quashed.

9. The learned counsel