Dr. Mitali Konwar vs The State Of Assam And 2 Ors
2021 Latest Caselaw 2454 Gua

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GAHC010163102021




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

                                 Case No. : WP(C)/5324/2021

            DR. MITALI KONWAR
            W/O. DR. SIDDHI PARASAD DEORI, R/O. EAST MILAN NAGAR, PRATIM
            PATH, C.R. BUILDING, P.S. DIBRUGARH, SADAR, DIST. DIBRUGARH,
            ASSAM, PIN-786001.



            VERSUS

            THE STATE OF ASSAM AND 2 ORS
            REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, HIGHER
            EDUCATION DEPTT., DISPUR, GUWAHATI-06.

            2:THE COMMISSIONER AND SECRETARY
            TO THE GOVT. OF ASSAM
             EDUCATION (HIGHER) DEPTT.
             DISPUR
             GUWAHATI-06.

            3:THE DIRECTOR OF HIGHER EDUCATION

             ASSAM
             KAHILIPARA
             GUWAHATI-19
             ASSAM

Advocate for the Petitioner   : MR A D CHOUDHURY

Advocate for the Respondent : SC, HIGHER EDU
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                               BEFORE
          HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                         ORDER

07.10.2021

Heard Mr. A D Choudhury, learned senior counsel for the petitioner. Also heard Mr. K Gogoi, learned counsel for the Higher Education Department, Government of Assam.

2. The petitioner is the regular Principal of Moran College in the Charaideo district and had been transferred to PB College Gauripur, Dhubri in the same capacity by the order impugned dated 28.09.2021. The order refers to Section 3(c) of the Assam College Employees (Provincialisation) (Amendment) Act, 2012 which confers a power to the authorities to transfer. The power to transfer under Section 3 is an enabling power which enables the authorities to transfer in a given circumstance where the circumstance would also have to be justified and acceptable as per law.

3. By our order dated 06.10.2021, we required the respondent authorities to produce the records in original which resulted in the order of transfer dated 28.09.2021 being passed.

4. Prior to it we have to refer to an order dated 17.03.2021 in WP(C) 5814/2020 wherein an order dated 08.09.2020 of the Director of Higher Education, Assam by which the petitioner was placed under suspension was interfered. In the order of suspension dated 08.09.2020, the petitioner was placed under suspension as she was in judicial custody beyond 48 (forth eight) hours in connection with Dibrugarh PS Case No. 1443/2020 under Section 344/326/34 of the Indian Penal Code read with Section 14 of the Child and Adolescent Labour Prohibition Act and Section 75 of the Juvenile Justice (Care and Protection of Children Act, 2015).

5. It is informed to us that the said Dibrugarh PS Case No. 1443/2020 was registered on an allegation that a minor was found in the residence of the petitioner. In the said writ petition, the authorities were required to pass an order on the further continuation of the order of suspension in view of the proviso to Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964 wherein there is a provision that Page No.# 3/6

the disciplinary authority may vacate an interim order after the person concerned is released from custody.

6. We have been told that consequently, the petitioner was reinstated in service by the order dated 02.07.2021.

7. In the aforesaid background the records produced by the department reveals that there was a communication from the Deputy Commissioner, Charaideo, Assam dated 16.09.2021 addressed to the Principal Secretary to the Government of Assam in the Secondary Education which refers to certain agitation being carried out in the Moran College against the reinstatement of the petitioner Dr. Mitali Konwar as the Principal of the college and in this respect a memorandum was submitted by the Secretary of the Akhil Bharatiya Vidyarthi Parishad which is a student organization, which contained an allegation that there was misappropriation of funds during the tenure of the petitioner Dr. Mitali Konwar as Principal of the college.

8. The said communication of the Deputy Commissioner gives a prima facie indication that there is an allegation of misappropriation of funds against the petitioner. The communication further states that in respect of such allegation, an enquiry was conducted by the Additional Deputy Commissioner, Charaideo, the report of which is enclosed with the said communication. Further reason stated is that the District Administration was trying to tackle the matter with the agitating students but as the situation turned unruly and some students were arrested and the administrative authority was unable to control the situation, they came into an agreement with the students to call off the agitation with a condition that the necessary action would be taken by the Education Department. The other reason stated is that such agitation had adversely affected the academic atmosphere of the College. In the circumstance, we have to understand that the petitioner is transferred in order to mitigate the agitation referred in the communication dated 16.09.2021 of the Deputy Commissioner, Charaideo.

9. If we accept the said communication of the Deputy Commissioner, we have to accept the situation that if there is an allegation by any authority against a Government Officer which results in some agitation either through the students or by any other authority, in order to mitigate such agitation the authorities will come to an Page No.# 4/6

agreement with such agitating persons that person concerned would be transferred out. Such approach cannot be accepted to be an appropriate administrative procedure being exercised by the authorities although the purpose for which it was exercised would be served.

10. However, the core allegation against the petitioner was that she was involved in misappropriation of funds and for that purpose, the Additional Deputy Commissioner had submitted an enquiry report. The allegation referred in the report of the Additional Deputy Commissioner of 01.09.2021 shows that the petitioner had appointed two employees without any approval of the Governing Body and their salaries are paid from the College funds. In other words, the allegation is that the appointments were without the approval of the Governing Body. The second allegation is that the funds provided to the College from the Computer Education Course such as PGDCA and DCA were not adequately used in imparting education. No detail of such allegation is provided. The third allegation is that the President of the Governing Body Dr. Sukha Baruah Saha is paid a remuneration of Rs.1000/- per month whereas the petitioner being the Principal is being paid an amount of Rs.5000/- per month. Such allegation also does not appear to indicate any misappropriation of funds. The fourth allegation is that the petitioner illicitly released funds against certain construction in the college. No allegation is made that the constructions were actually not carried out, nor it is stated as to which financial rule was violated. The fifth allegation is that a 100 KVA Mahindra Diesel Power Generator set was procured for Rs.11,63,800/-(Rupees Eleven Lakh Sixty Three Thousand and Eight Hundred) whereas the market value is Rs. 7,50,000/- (Rupees Seven Lakh). The said allegation may have some substance but it again requires an enquiry and an opportunity to be given to the petitioner. The sixth allegation is that 32 (thirty two) numbers of cheque leaves amounting to Rs.1,18,750/- (Rupees One Lakh Eighteen Thousand Seven Hundred Fifty) for the period of July, 2017 to February, 2018 was issued against a Grade-IV employee namely Kamal Ashish Dhar. Such allegation also requires further enquiry as to whether the payment was legitimately done or it was unauthorizedly paid. The aforesaid allegations are now relied upon to justify the transfer of the petitioner from Moran College and PB College Gauripur.

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11. To substantiate the action, the respondents relies a judgment of this Court rendered in Mozibur Rahman vs. State of Assam and ors reported in 2004(2) GLT 421 wherein in paragraph 11 a distinction was made between "punitive transfer" and "transfer itself being punitive". It further provides that when an employee is transferred from one station to another due to any alleged misconduct, the authorities use the transfer as an alternative to disciplinary proceeding. In the aforesaid context, we have enquired the respondents as to why they are not proceeding against the petitioner under the appropriate law as they are of the view that there are serious allegations of financial irregularities against the petitioner. The answer given is that by relying on the proposition laid down in Mozibur Rahman (supra), the authorities had used their discretion as an alternative to disciplinary proceeding to transfer the petitioner instead of proceeding departmentally.

12. At this stage, Mr. Gogoi states that the department also intends to departmentally proceed against the petitioner. But if the order of transfer is allowed to remain as it is, it would attain its finality and the same would carry a stigma that the petitioner was involved in financial irregularities without there being any detailed enquiry on the basis of some vague allegations.. The only reason given is that the atmosphere of the college is adversely affected. Again, going by the communication of the Deputy Commissioner, it appears that the atmosphere of the college is affected not by the presence of the petitioner but because of agitation program which the administrative authorities are unable to control.

13. In view of such prima facie observation as indicated above, more particularly, on the aspect that if the order of transfer is allowed to remain, it would carry a permanent stigma on the petitioner that she was involved in some financial irregularities without there being any sufficient material and conclusion thereof by following the due procedure of law.

14. We have gone through the factual background of the judgment of this court in Mozibur Rahman (supra) and note that in the aforesaid case the allegation against the person concerned was unsatisfactory performance as well as his suitability to hold the post concerned therein. But in the instant case the allegation being of some financial irregularities, for which again no conclusion has been arrived at by following due Page No.# 6/6

procedure of law, there would be substantial difference from the allegation of unsatisfactory performance and suitability to hold the post concerned.

15. Considering the matter in its entirety and in view of the balance of convenience and irreparable loss that the petitioner may suffer, the order of transfer shall remain stayed until further orders. However, liberty remains with the respondent authorities to proceed against the petitioner as per law and take any further action as may be available as per law, if the authorities are of the view that the appropriate materials are available on the allegation of any financial irregularities by the petitioner and any appropriate action can be taken by the respondent authorities as per law.

16. The records produced be returned back.

List after six weeks.

JUDGE

Comparing Assistant