Fazal Hoque vs The State Of Assam And 7 Ors
2021 Latest Caselaw 1966 Gua

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GAHC010127492021




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

                          Case No. : WP(C)/4119/2021

         FAZAL HOQUE
         S/O LATE SHUKUR ALI MUNSHI, VILL-KODAMTOLA PART-I, P.O. AND P.S.-
         BILASIPARA, DIST-DHUBRI, ASSAM, PIN-783348



         VERSUS

         THE STATE OF ASSAM AND 7 ORS
         REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
         ELEMENTARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI-6

         2:THE COMMISSIONER AND SECRETARY
          ELEMENTARY EDUCATION DEPARTMENT
          GOVERNMENT OF ASSAM
          DISPUR
          GUWAHATI-6

         3:THE DIRECTOR
          ELEMENTARY EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI-781019

         4:THE DEPUTY COMMISSIONER
          DHUBRI
         ASSAM
          PIN-783301

         5:THE DISTRICT ELEMENTARY EDUCATION OFFICER
          DHUBRI
          P.O. AND P.S.-DHUBRI
          PIN-783301
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            6:THE BLOCK ELEMENTARY EDUCATION OFFICER
             BILASIPARA
             DHUBRI
            ASSAM
             PIN-783348

            7:MIZANUR RAHMAN BHUYAN
             SCHOOL INSPECTOR (SI) C/O BLOCK ELEMENTARY EDUCATION OFFICE
             BILASIPARA
             P.O. AND P.S.-BILASIPARA
             DIST-DHUBRI
            ASSAM
             PIN-783348

            8:SOMER ALI AHMED
             S/O LT. JAMER ALI SK
            VILL-KAJAIKATA PART-VI
             P.O.-KAJAIKATA
             P.S.-BILASIPARA
             DIST-DHUBRI
            ASSAM
             PIN-78334

Advocate for the Petitioner   : MR. D DAS SR. ADV

Advocate for the Respondent : SC, ELEM. EDU

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 25-08-2021

JUDGMENT & ORDER (ORAL) Heard Mr. D Das, learned senior counsel for the petitioner. Also heard Mr. NJ Khataniar, learned counsel for the respondents No.1, 2, 3, 5 and 6 being the authorities under the Elementary Education Department, Government of Assam and Mr. SR Barua, learned counsel for the respondent No.4 being represented by the Deputy Commissioner, Dhubri.

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2. Considering the nature of the grievance raised in this writ petition, we are of the view that the respondents No.7 and 8 are not necessary parties in the present proceeding and accordingly the array of such respondents stands deleted.

3. The petitioner is a retired Headmaster of Buchirchar ME Madrassa in the Dhubri district and he had retired from service upon attaining the age of superannuation on 01.02.2020. Some allegations were raised against the petitioner by some students/parents of the school concerned as well as by some member of the public that during his tenure as the Headmaster of the school, he was involved in certain fraudulent activities resulting in misappropriation of certain minority student scholarship funds that were made available. The said allegation resulted in an FIR dated 01.01.2021 filed by one Fulbar Hussain claiming himself to be father of a student before the Officer-in-charge of Bilasipara PS Case No.1/2021 under Section 420/406 IPC. In the said police station case, the petitioner was granted interim pre-arrest bail by this Court by the order dated 26.03.2021 in AB No.944/2021.

4. It is the case of the petitioner that in the said pre-arrest bail proceeding, the informant Fulbar Hussain entered appearance for opposing the bail prayer of the petitioner and has produced and relied upon an enquiry report dated 21.12.2020 made by the in-charge Block Elementary Education Officer, Bilasipara Sri M Rahman Bhuyan to the District Elementary Education officer, Dhubri. The very first paragraph of the said enquiry report which is available at annexure-6 page 46 of the writ petition shows that it was a report of the Page No.# 4/6

enquiry by the in-charge BEEO pursuant to a letter dated EED-189/P/88/Pt- III/2020-21/5633, dated 01.12.2020 of the BEEO, Bilasipara. A reading of the enquiry report goes to show that the in-charge BEEO had visited the school, taken the statement of some persons around and arrived at his conclusion that there were some fraudulent withdrawal from the minority scholarship of the various students which were deposited in their respective accounts. The enquiry report also states that the enquiring authority had confirmed that one Jomer Ali Hazarika owner of CSP under UCO Bank Raniganj Branch, where the bank was located, had informed that both Jomer Ali Hazarika as well as the petitioner were involved in such fraudulent withdrawals. We are not on the correctness or veracity of such report of the enquiry by the in-charge BEEO. If there are any allegations against a person or a retired Headmaster of a school regarding any fraudulent activity of finance related to the school, the authorities in the Elementary Education Department are always within their own right to make a preliminary enquiry to arrive at their satisfaction as to whether any material is available for further processing as regards such allegations. But such report would remain confined as a preliminary enquiry report. Such report is also permissible to be obtained without following the principles of natural justice against the person on whom the allegations are raised, but if it is so, such report can only be acted upon to initiate further action against such person against whom the allegations are available as per the procedure available under the law and the preliminary enquiry report itself cannot be the basis to take any other further actions which may affect the legal right of the person concerned.

5. In the instant case, the preliminary enquiry report dated 21.12.2020 of the in-charge BEEO Bilasipara has been assailed.

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6. We are unable to satisfy ourselves that the enquiry report is required to be set aside only for the reasons that it was made in violation of the principles of natural justice, inasmuch as, a preliminary enquiry report in such manner, is otherwise permissible under the law. But at the sametime, when such enquiry report is made without following the principles of natural justice it cannot be a document by itself to take penal action of any kind against the person against whom the enquiry is made. For taking any penal action, the required procedure under the law would have to be followed.

7. From the said point of view, we do not find any merit in this writ petition for setting aside the preliminary report dated 21.12.2020, but at the same time with the observation that the said enquiry report can be used by the respondent Elementary Education Department only for taking further action against the petitioner strictly by following due procedure of law and no penal action can be taken merely on the basis of such enquiry report.

8. The other disturbing aspect is that the enquiry report is supposed to be an internal document between DEEO and the in-charge BEEO for facilitating further action against the petitioner under the law. It is not understood as to how this document was leaked out to the informant allowing him to produce and rely on the same in a bail proceeding. If it is done, it would mean that the respondents in the Elementary Education Department had made the ex-parte enquiry report dated 21.12.2020 which was done without following the principles of natural justice, to be a material basis for taking action against the petitioner.

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9. The appropriate authorities in the Education Department including the DEEO and BEEO are restrained from allowing the enquiry report to be used by anybody against the petitioner other than in a proceeding against the petitioner as per law by the Education Department.

10. If any other person is taking advantage of the preliminary enquiry report in any other proceeding, the Director of Elementary Education shall cause an enquiry and take appropriate action against any such officer who is involved in any such manner.

11. Writ petition stands disposed of in the above terms.

JUDGE

Comparing Assistant