Rupak Kumar Saikia @ Rupak Saikia vs The State Of Assam And 4 Ors
2021 Latest Caselaw 1496 Gua

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GAHC010151432020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/4484/2020

            RUPAK KUMAR SAIKIA @ RUPAK SAIKIA
            S/O- SRI ROSHO SAIKIA, R/O- VILL AND P.O. KETEKIBARI, PIN- 784001,
            DIST.- SONITPUR, ASSAM



            VERSUS

            THE STATE OF ASSAM AND 4 ORS.
            REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, DEPTT. OF
            EXCISE, DISPUR, GHY, ASSAM

            2:THE JOINT SECY. TO THE GOVT. OF ASSAM
             EXCISE DEPTT.
             DISPUR
             GHY
            ASSAM

            3:THE COMM. OF EXCISE
            ASSAM
             HOUSEFED COMPLEX
             DISPUR
             GHY-06

            4:THE DY. COMMISSIONER
             LAKHIMPUR
             PIN- 787001

            5:THE SUPERINTENDENT OF EXCISE
             LAKHIMPUR
             PIN- 78700

Advocate for the Petitioner   : MR. P J SAIKIA
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Advocate for the Respondent : SC, EXCISE DEPTT.




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                           ORDER

Date : 22-04-2021

Heard Mr. JK Bhuyan, learned counsel for the petitioner. Also heard Mr. PN

Goswami, learned counsel appearing for the Excise Department as well as Mr. M Biswas,

learned counsel appearing for the Caveator.

2. Mr. PN Goswami, learned counsel appearing for the Excise Department submits that

the daughter of the Secretary of the Excise Department has been found to be COVID positive

and accordingly, the Secretary was under isolation. Further, the Joint Secretary of the Excise

Department is also found to be COVID positive two days ago. He accordingly, prays that the

personal appearance of the above two officials be dispensed with. He also submits that he

has brought the official records.

3. On considering the prayer made by Mr. Goswami, the personal appearance of the

Secretary and the Joint Secretary of the Excise Department is dispensed with.

4. The petitioner is aggrieved by the order dated 12.10.2020, by which he has been

transferred from Bihpuria Excise Circle, Lakhimpur to Haflong Excise Circle. The petitioner's

challenge to the impugned transfer order is that he has been transferred due to an allegation

made by the Member of Parliament (MP), Lakhimpur in his letter to the Principal Secretary,

Excise Department, Government of Assam, wherein the petitioner is alleged to have illegal

relations with illegal liquor traders, i.e, Distillery bonded warehouse and Arunachal wineshop, Page No.# 3/5

etc

5. The petitioner's counsel submits that the letter addressed by the MP to the Secretary,

Excise Department, Government of Assam had not only requested the transfer of the

petitioner, but also, the transfer of two other Excise Inspectors, Sri Debajyoti Dihingia and Sri

Sarat Timung. He submits that the letter of the MP has been acted upon by the State

respondents blindly and without any application of mind, as not only the petitioner, but Sri

Debajyoti Dihingia and Sri Sarat Timung have all been transferred to the places that the MP

had requested them to be transferred to.

6. The petitioner's counsel submits that as the petitioner has been transferred on an

allegation of having illegal relations with illegal liquor traders, the petitioner should have been

transferred only after a preliminary enquiry had been made by the authorities. However, the

same was not done by the respondents. Further, the petitioner having been posted to the

Bihpuria Excise Circle, Lakhimpur only on 06.02.2019, the transfer of the petitioner prior to

completion of 3 (three) years of normal posting tenure in Bihpuria Excise Circle, Lakhimpur

was not in consonance with the guidelines laid down by the State Government, wherein

justification for the transfer should be provided and approval of the Chief Minister taken.

7. Mr. PN Goswami, learned counsel appearing for the Excise Department submits that

the transfer of the petitioner is not a punishment transfer and the approval of the Chief

Minister had been taken for the transfer. He also submits that though there appears to be

some non-application of mind, inasmuch as, the petitioner has been transferred to a which

had been requested by the MP, the same does not disentitle the respondents from revisiting

the issue of transfer of the petitioner. He also submits that in terms of the judgment of Mohd.

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Masood Ahmad vs. State of UP & Ors., reported in (2007) 8 SCC 150, a transfer on the

recommendation of an MLA would not vitiate a transfer order, as it is the duty of the

representatives of the people in the legislature, to express the grievances of the people and if

there is any complaint against an official, the State Government is certainly within its

jurisdiction to transfer such an employee.

8. I have heard the learned counsels for the parties.

9. The records have also been brought to the Court.

10. On perusal of the records, I find that the approval of the Chief Minister has been taken

prior to transfer of the petitioner vide the impugned order dated 12.10.2020. Further, the

petitioner, as on date, has completed 2 (two) years of posting in Bihpuria Excise Circle,

Lakhimpur.

11. It is also seen that the Excise Department had transferred the petitioner and two other

Inspectors of Excise, vide the impugned transfer order dated 12.10.2020, to places which the

MP had requested, which apparently goes to show that there was no application of mind by

the Excise Department. Be that as it may, there has been a serious allegation made against

the petitioner i.e. he had illegal relations with illegal liquor traders. However, as no proceeding

has been initiated against the petitioner with regard to the above allegations, it cannot be

said that the petitioner's transfer is by way of punishment or has caused any prejudice to

him, except to the extent that he has not completed the normal tenure of posting at the time

when the impugned transfer order was issued.

12. On considering the fact that the petitioner has already completed two years of service

in Bihpuria Excise Circle, Lakhimpur as on date, this Court is not inclined to interfere with the Page No.# 5/5

transfer of the petitioner out of Bihpuria Excise Circle, Lakhimpur. However, as the State

respondent have not applied their mind while posting the petitioner, except to follow the

recommendation of the MP by transferring him to Haflong, the State respondents should

revisit the impugned transfer order, after giving the petitioner an opportunity to submit a

representation with regard to his grievances on his transfer to Haflong.

13. Accordingly, the writ petition is disposed of giving liberty to the petitioner to submit a

representation to the respondent No. 1 within a period of 1 (one) week from today with

regard to his grievances. The representation should be considered and decided within a

further period of 1 (one) week sympathetically.

14. Interim order passed earlier stands vacated.

JUDGE

Comparing Assistant