Mojibur Rahman Barbhuiya vs The State Of Assam And 5 Ors
2022 Latest Caselaw 1909 Gua

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GAHC010061202022




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

                        Case No. : WP(C)/2279/2022

         MOJIBUR RAHMAN BARBHUIYA
         S/O- LATE ABDUL RAHIM BARBHUIYA, R/O- CHIPASANGOR, P.O-
         CHIPASANGOR, P.S- HAILAKANDI, DIST- HAILAKANDI, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
         ELEMENTARY EDUCATION DEPTT .
         , DISPUR, GHY-06

         2:THE SECRETARY
         TO THE GOVT OF ASSAM
         FINANCE (BUDGET) DEPARTMENT
          DISPUR
          GUWAHATI-781006

         3:THE DIRECTOR
          OF ELEMENTARY EDUCATION
          KAHILIPARA
          GHY-19
          KAMRUP (M)
         ASSAM

         4:THE DISTRICT ELEMENTARY EDUCATION OFFICER
          HAILAKANDI
         ASSAM
         P.O AND DIST.- HAILAKANDI

         5:THE DEPUTY INSPECTOR OF SCHOOLS
          HAILAKANDI
         ASSAM
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            P.O AND DIST.- HAILAKANDI
            PIN-788155

            6:THE TREASURY OFFICER
             HAILAKANDI
            ASSAM
            P.O AND DIST.- HAILAKANDI
            PIN-78815

Advocate for the Petitioner   : MR. JUNM LASKAR

Advocate for the Respondent : SC, ELEM. EDU

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL)

Date : 01-06-2022

Heard Ms. N Khatun, learned counsel for the petitioner. Also heard Mr. R Mazumdar, learned counsel for the respondents no. 1, 2, 3, 4 and 5 being the authorities under the Elementary Education Department, Government of Assam and Mr. A Chaliha, learned counsel for the respondents no. 6, Finance Department, Government of Assam.

2. The petitioner is the head teacher of Baiyerkandi LP School in the Hailakandi district and was placed under suspension as per the order dated 19.01.2019 of FR Laskar, ACS, District Development Commissioner cum District Elementary Education Officer, Hailakandi.

3. The order is extracted as below:

"ORDERS Pending drawl of departmental proceeding Sri Mozibur Rahman Barbhuiya, HT, Baiyerkandi LP School is hereby placed under suspension.

During the period of suspension the teacher concern is allowed to draw subsistence allowances as per rules in force.

This order shall come into force with immediate effect.

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Sd/- F.R. Laskar ACS District Development Commissioner cum District Ele.Edn.Officer, Hailakandi"

4. All that the order reads is that pending drawl of the departmental proceeding, the petitioner is placed under suspension and during the period of suspension, he will be paid the subsistence allowances and further the order shall come into force with immediate effect. The petitioner submitted a representation before the District Elementary Education Officer, Hailakandi on 24.01.2022 requesting that the suspension order be recalled and he be reinstated in service. According to the petitioner there was no rhyme or reason justifying the suspension and further the order of suspension states that it was done pending drawl of a departmental proceeding but no departmental proceeding had been initiated.

5. In the circumstance, we required the District Elementary Education Officer, Hailakandi to remain personally before the Court along with the records to explain as to why the petitioner was placed under suspension and whether any departmental proceeding had been initiated.

6. The reasoning as to why the petitioner was placed under suspension is necessary inasmuch as by this writ petition the petitioner claiming the full salary and allowances for the period for which he was under suspension i.e. from 19.01.2019 to 28.02.2021. The entitlement of the petitioner for salary and allowances can only be decided by taking into consideration the facts and circumstances under which he was placed under suspension and the reasons thereof and further as to whether any order acceptable in law is available on record which may provide that the petitioner would not be entitled to the salary and allowances for the said period.

7. Mr. I H Barbhuiya, District Elementary Education Officer, Hailakandi is present before the Court along with the records.

8. Upon examination of records, Mr. R Mazumdar, learned counsel for the Secondary Education Department makes a candid statement that no record is available as regards the suspension of the petitioner other than the order of suspension itself. Accordingly, an enquiry was conducted through the Block Elementary Education Officer, Hailakandi as to under what circumstances and for what reasons the petitioner was placed under suspension.

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9. The enquiry report of the Block Elementary Education Officer, Hailakandi dated 01.02.2022 is extracted as below:

"With reference to the subject cited above I have the honour to furnish below a brief enquiry report in respect of the suspension of Sri Mozibur Rahman Barhuiya, HT, Baiyerkandi L.P.School who was placed under suspension vide DEEO, Hailakandi order issued under Memo No.. DEH-7/Pt/2017-18/1967-73 dtd. 19/1/2019.

During the enquiry, Sri Mozibur Rahman Barbhuiya, HT, Baiyerkandi L.P.School states that while he was performing his duties regularly and due to his illness he submitted an application on 14/1/2019 to transfer him at any school to his vicinity nearby roadside. But, he was suspended by the then District Elementary Education Officer, Hailakandi vide his letter No. DEH-7/Pt/2017-18/1967-73 dtd.19/1/2019.

During the enquiry, it has been attempted to trace out the original records on the basis of which the teacher concern was placed under suspension, but it could not find out. The local person also stated that the teacher concern is a good teacher.

Besides, the Baiyerkandi LP School is now running with a single teacher hence it is becoming difficult to run the school with a single teacher.

In view of the above, it is inferred that the teacher concern is not involve in any irregularities and was performing his duties properly. Hence no charges can be framed against him in absence of any records and evidences or any noting of the disciplinary authority.

In fine, it is proposed that as there are no materials and evidences on record available, so the suspension period of the teacher concern may be regularized for all purpose.

This is for favour of your kind information and necessary action."

10. A reading of the afore-extracted enquiry report of the Block Elementary Education Officer makes it discernable that the petitioner because of his illness had submitted an application on 04.01.2019 to transfer him to any other school as the present school where he was serving according to him is inconvenient because of his illness. The enquiry report states that during the enquiry, it was attempted to trace out the original records on the basis of which the teacher concerned was placed under suspension but no such record is available. The local persons who were enquired also stated that the teacher concerned is a good teacher otherwise. Because of the suspension, the Baiyerkandi LP School in the Hailakandi district was running with only a single teacher which again affected the children.

11. Further as per the report the petitioner was not involved in any irregularity and was performing his duty in a regular and normal manner, therefore, no charges can be framed Page No.# 5/6

against him to initiate any departmental proceeding.

12. A reading of the enquiry report makes it explicit that there was absolutely no reason acceptable in law either to initiate a departmental proceeding against the petitioner or to suspend him. In other words, the order by which the authority who had suspended the petitioner namely, Sri F.R. Laskar, ACS, the then District Development Commissioner cum District Elementary Education Officer, Hailakandi who was holding the office as on 19.01.2019, is arbitrary, unreasonable and was passed in a high handed manner which is unacceptable to have been passed by a reasonable official of the Government of Assam. Secondly, if the petitioner was suspended for a mere reason that he had made a representation to transfer himself to any other suitable school, which cannot be said to be unacceptable in law under the service conditions of the petitioner, the authorities could have either accepted or rejected by passing a reasoned order. But the same cannot be a reason for passing an order of suspension or for initiating a departmental proceeding and merely, seeking change in the service conditions, cannot be accepted to be a misconduct in order to invoke the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 to initiate a departmental proceeding.

13. If the conduct of the authorities suspending the petitioner is to be accepted, we also have to accept that an employee of the Government of Assam have no right to seek any kind of variations in the service conditions whether or not such variations are acceptable in law. If it has to be accepted that under no circumstance an employee can make a representation seeking variations in his service conditions and any act of submitting a representation would be an act of misconduct inviting a proceeding under the Assam Services (Discipline and Appeal) Rules, 1964, it has to be understood that the administration is being run like that of a police state which again would have to be accepted that it is against the principles of a democratic country as well as against the provisions of the Constitution of India.

14. In view of the aforesaid conclusion, the respondent authorities in the Elementary Education Department through the Director of Elementary Education, Assam is directed to pay the complete salary and allowances to the petitioner for the period under suspension. It is stated that a process has already been initiated for payment of the complete salary and allowances and if it is so, the same be brought to its logical end.

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15. Because of the manner in which the petitioner was placed under suspension, the reasons thereof as revealed from the records and from the act of the authority who had suspended the petitioner in such arbitrary, unreasonable and high handed manner, which is contrary to the democratic principles as well as that of the Constitution of India, a cost of Rs.25,000/- (Rupees Twenty Five Thousand) is imposed on the respondents to be paid to the petitioner. As it is an act of a particular individual official of a Department of the Government of Assam, the cost be paid to the petitioner be recovered from the said official and the Chief Secretary to the Government of Assam is directed to ensure that the burden of the cost is not borne on the public exchequer.

16. A report of compliance thereof be placed before the Registry.

17. Further presence of Mr. I H Barbhuiya, District Elementary Education Officer, Hailakandi stands dispensed with.

18. Writ petition stands allowed as indicated above.

JUDGE

Comparing Assistant