WP(C)/924/2021
2021 Latest Caselaw 2904 Gua

                                                                       Page No.# 1/6

GAHC010094382020




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



                                     WP(C) No.3095 / 2020
     Sri Sayyed Alam.
                                                       ... Petitioner
                           Vs.
     The State of Assam
                                                       ... Respondent

WP(C) No.924 / 2021

Sri Sayyed Alam.

... Petitioner Vs.

1. The State of Assam

2. Rahul Ch. Das, ACS,

3. Dwipen Ch. Das ... Respondents

BEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI

For the Petitioner : Shri A.R. Bhuiya, Advocate,

For the Respondents : Ms. M.D. Bora, Advocate,

Dates of Hearing : 16.11.2021.

     Date of Judgment & Order    :       16.11.2021.
                                                                                   Page No.# 2/6

                                  JUDGEMENT & ORDER

1. Both the writ petitions being filed by the same petitioner and being connected, the same are being taken up for disposal together by this common judgment and order, filed in this High Court.

2. The petitioner who was serving as a District Transport Officer at Karimganj was transferred to Guwahati vide an order dated 26.03.2015. The said order of transfer was the subject matter of a writ petition being WP(C) No. 2177/2015, filed in this High Court.

3. While no interference was made with the said order of transfer, this Court however vide order dated 24.04.2015 had disposed of the writ petition by giving liberty to the petitioner to submit a representation before the Commissioner & Secretary to the Government of Assam, Transport Department within 7(seven) days and in the event such representation is submitted, the same was to be considered by passing an appropriate order within a period of 2(two) weeks from the date of receipt of the representation.

4. It is the case of the petitioner that pursuant to the said liberty, he had submitted a written representation dated 30.04.2015 which was received on the same date. However, no endeavor was made to consider and dispose of the same leading to filing of further representations dated 30.11.2016, 23.11.2017 and 10.10.2018. Subsequently, vide an order dated 22.03.2016, another transfer order was passed by which the petitioner was posted at Karbi Anglong and the petitioner had joined pursuant to the same.

5. It is the case of the petitioner that though he had retired from service on 30.11.2016, the period from 10.04.2015 to 30.03.2015 has been considered by the authorities to be "on leave" which according to the petitioner is erroneous as there is nothing to show that he has opted for leave.

6. The action of the respondent authorities in treating the aforesaid period to be "on Page No.# 3/6

leave" is the subject matter of this writ petition wherein the petitioner has prayed for a direction for regularization of his service for the said period as the same has adverse impact on his post retirement benefits.

7. The second writ petition WP(C) No. 924/2021 has been filed primarily with the grievance that a Disciplinary Proceeding has been initiated against him vide a notification dated 21.12.2016. It is the case of the petitioner that he has retired on 30.11.2016 and the mandate of law requires that prior sanction of the Government be taken to initiate such proceedings and that not being done, the proceeding is not sustainable in law.

8. I have heard Shri A.R. Bhuiya, learned counsel for the petitioner. I have also heard Ms. M.D. Bora, learned Standing Counsel, Transport Department.

9. Shri Bhuiya, the learned counsel for the petitioner submits that so far as the first case is concerned, by virtue of the order dated 24.04.2015, he was under the bona fide belief that the representation submitted by him would be considered and the matter would be brought to a logical conclusion. However, no such steps were taken by the authorities in spite of the fact that a number of reminders were also submitted by him.

10. Under those facts & circumstances, it is wholly unreasonable and arbitrary on the part of the respondent authorities to treat the period of 10.04.2015 to 30.03.2016 as "under leave". The learned counsel fairly submits that though no contempt proceeding was initiated for violation of the direction of this Court given in the order dated 24.04.2015, the force of the order does not gets extinguished by lapse of time and the authorities were duty bound to comply with the same and for their inaction, the petitioner cannot be made to suffer.

11. So far as the second writ petition is concerned, the attention of this Court has been drawn to the Assam Services (Pension Rules), 1969, herein after Rules of 1969.

Page No.# 4/6

12. By referring to Rule 21(b) the learned counsel for the petitioner has submitted that apparently no sanction of the Government has been taken and therefore, the Departmental Proceeding is wholly without jurisdiction and be declared as non est law.

13. The learned counsel submits that the law being clear on the subject which is mandatory in nature, the Departmental Proceeding initiated against the petitioner is not sustainable in law and liable to be interfered with.

14. Ms. M.D. Bora, learned Standing Counsel, Transport Department fairly submits that so far as the second writ petition is concerned where a challenge has been made to the Departmental Proceeding which has been initiated by issuance of the show cause notice dated 21.12.2016 is admittedly after the date of retirement of the petitioner which is 30.11.2016. She further submits that she has obtained written instructions dated 30.09.021 as per which there is nothing on record to suggest that sanction of the Governor has been taken prior to institution of the Departmental Proceeding as required under Rule 21(b) of the Rules of 1969. The learned Standing Counsel accordingly submits that consequential orders may be passed by this Court.

15. So far as the first writ petition is concerned, the learned Standing Counsel has however, defended the action by stating that since the first order of transfer dated 26.03.2015 whereby the petitioner was transferred from Karimganj to Guwahati was not interfered with by this Court in the writ petition filed by the petitioner, it was incumbent upon the petitioner to join the new place of posting at Guwahati and therefore, the only option left with the authorities was to treat the period as "on leave". The learned Standing Counsel submits that a more severe action was also available to treat the period as not on duty.

16. The authorities were also considerate enough to pass a subsequent order of transfer to Karbi Anglong which the petitioner had complied with and therefore, no grounds has been able to be made out by the petitioner to interfere with the order by which the period in question from 10.04.2015 to 30.03.2016 has been held to be on leave.

Page No.# 5/6

17. As regards the impediment in receiving, the post retirement benefits, the learned Standing Counsel has placed before this Court a written communication dated 30.09.2021, from which it appears that the provisional pension has already been paid to the petitioner. She further submits that the other post retirement benefits which are admissible and entitled to by the petitioner would be paid in accordance with law.

18. The rival contentions of the learned counsel for the parties have been duly considered. Let us take the second writ petition namely WP(C) No. 924/2021.

19. The principal contention of the petitioner is violation of Rule 21(b) of the Rules of 1969 and the said allegation has been fairly accepted by the Department by way of written instructions dated 30.09.2021.

20. It is a settled principle of law that if a procedure is prescribed to do a certain thing in a certain manner, the said manner has to be followed and violation of the same would amount to any legality. In this connection, reference may be made to the celebrated decision of the Privy Council in the case of Nazir Ahmed Vs. King Emperor, reported in AIR 1936 253 PC (II) wherein the following has been laid down:-

"The rule which applies is a different and not less well recognized rule-- namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."

21. In view of this, this Court has no other option but to interfere with the Disciplinary Proceeding which has been done in violation of the mandatory provision of law. Consequently, the proceedings initiated vide the communication dated 21.12.2016 is set aside.

22. So far as the first writ petition, namely WP(C) No. 3095/2020 is concerned, though there was a clear direction of this Court for consideration of the representations of the Page No.# 6/6

petitioner, apparently, the said direction was not complied with. However, at the same time, it is seen that the petitioner, other than submitting reminders did not approach this Court complaining violation of the direction of this Court. Though the learned counsel for the petitioner may be right in contending that by efflux of time the orders of this Court do not become redundant by taking into consideration the period of limitation prescribed in the Contempt of Court's Act, 1971 taking punitive action for such non compliance becomes time barred.

23. In view of the aforesaid facts & circumstances, this Court, by balancing the equities directs that so far as the grievance of the petitioner is concerned with regard to re-consider the period from the 10.04.2015 to 30.03.2016 to be on leave, the petitioner shall within 15 days from today submit a detailed representation to expunge / withdraw such remark and regularize the aforesaid period so that there is no impediment in getting his post retirement benefits. The fact that the petitioner has retired in the meantime is also a relevant factor which the authorities would keep in mind while considering the representation. The representation be considered and disposed of within a period of 45 days from the date of receipt.

24. The written instructions placed before this Court by Ms. Bora, the learned Standing Counsel, Transport Department are made part of the records.

JUDGE

Comparing Assistant