Deva Doley vs The State Of Assam And 4 Ors
2025 Latest Caselaw 3589 Gua

Gauhati High Court

Deva Doley vs The State Of Assam And 4 Ors on 28 February, 2025

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GAHC010028962021




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

                          Case No. : WP(C)/1047/2021

         DEVA DOLEY
         S/O LATE MASON DOLEY, R/O VILL. TAJIKGAON, MOUZA BORDOLONI,
         UNDER GOGAMUKH REVENUE CIRCLE, DIST. DHEMAJI, ASSAM, PIN
         787034



         VERSUS

         THE STATE OF ASSAM AND 4 ORS.
         REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
         ASSAM, REVENUE DEPTT., DISPUR, GUWAHATI 6

         2:THE COMMISSIONER

          NORTH ASSAM DIVISION
          TEZPUR
          PIN 784001

         3:THE DEPUTY COMMISSIONER

          DHEMAJI
          DIST. DHEMAJI
          ASSAM
          PIN 787057

         4:THE ADDL. DEPUTY COMMISSIONER (REVENUE)

          DHEMAJI
          DIST. DHEMAJI
          ASSAM
          PIN 787057

         5:THE CIRCLE OFFICER
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             GOGAMUKH REVENUE CIRCLE
             GOGAMUKH
             DIST. DHEMAJI
             PIN 7870

Advocate for the Petitioner   : MR. S Ali, MR K DAS

Advocate for the Respondent : GA, ASSAM, SC, REVENUE

BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

JUDGMENT & ORDER (Oral) Date : 28.02.2025

Heard Mr. K. Das, learned counsel for the petitioner. Also heard Ms. N. Bordoloi, learned Standing Counsel, Revenue Department representing the respondent no. 1 and Mr. J. K. Goswami, learned Addl. Senior Government Advocate appearing for the respondent nos. 2 to 5.

2. The challenge in the present proceeding is to an order dated 20.07.2019, issued by the Deputy Commissioner, Dhemaji, removing the petitioner from the post of Lot Gaon Bura. The petitioner has also presented a challenge to an order 05.02.2021, passed by the Commissioner, North Assam Division, Tezpur, in an appeal so preferred against the order dated 20.07.2019. The issuance of an advertisement dated 29.07.2019, for filling up of the post of Lot Gaon Bura for the Lots involved, held by the petitioner, before his removal vide the order dated 20.07.2019, is also under challenge in the present proceeding.

3. The petitioner herein, was vide an order dated 05.09.2014, appointed as the Lot Gaon Bura for 04 villages namely, (i) Gogamukh Miri Gaon, (ii) Gogamukh Pomua, (iii) Gogamukh Nepali and (iv) Bali Gaon Kachari. The petitioner, on joining his engagement as Lot Gaon Bura for the villages in question, was Page No.# 3/13

discharging his duties in such capacity w.e.f., 06.09.2014. On 20.08.2018, one Mantu Konwar had approached the petitioner, requesting him to issue a Residential Certificate in his favour. The residence of said Mantu Konwar being disclosed to be in village Dhemaji and that he was temporarily residing at Silimpur in the house of one Ranjit Gogoi; and it was stated that the certificate was required in connection with opening a bank account at Gogamukh. Although the petitioner had initially refused to issue any certificate in favour of said Mantu Konwar, however, said Mantu Konwar had given an undertaking in writing in presence of 03 witnesses that he would not use the Residential Certificate for any other purpose, except for opening a bank account at Gogamukh. Accordingly, on good faith and based on the said undertaking, the petitioner issued an Inhabitant Certificate in favour of said Mantu Konwar on 20.08.2018, certifying therein that Mantu Konwar was an inhabitant of village Silimpur and he was well known to the petitioner. In the month of May, 2019, the petitioner came to learn from reliable sources that said Mantu Konwar had issued the certificate dated 20.08.2018, issued by the petitioner, as an address proof for the purpose of award of a Railway contract. The petitioner, on finding that the certificate issued by him was used by said Mantu Konwar for a purpose other than for which it was so issued, submitted a representation before the Circle Officer, Gogamukh Revenue Circle with a prayer for cancellation of the said Residential Certificate, issued by the petitioner in favour of Mantu Konwar. The said representation was followed by a further representation dated 01.06.2019 on the same count.

4. Poised thus, the petitioner, received a show-cause notice dated 04.07.2019 from the office of the Deputy Commissioner, Dhemaji and therein, it was alleged that the petitioner had issued a Residential Certificate to said Mantu Konwar, although he was not a resident of the area. Basing on the said allegation, the petitioner was charged with violation of duties and responsibilities of Gaon Buras' as laid down in the Executive Instruction No. 164. On receipt of the show-cause Page No.# 4/13

notice, the petitioner submitted his reply on 11.07.2019 and therein, the petitioner had contended that the certificate was so issued to him basing on an undertaking given by Mantu Konwar in presence of 03 witnesses. It was further contended that the undertaking as given by said Mantu Konwar was that the certificate was required for the purpose of opening a bank account only. Accordingly, it was submitted that the said act be excused.

5. The jurisdictional Deputy Commissioner, on receipt of the written statement of the petitioner, proceeded vide order dated 20.07.2019 to remove the petitioner from the post of Lot Gaon Bura, in exercise of powers conferred on him under the provisions of Clause 162-A(2)(iv) of the Executive Instructions, framed under the provisions of the Assam Land Revenue Regulations. In the said order, it was projected that the petitioner was removed from the said post of Lot Gaon Bura for involvement in "corrupt behaviors, as defined in the Prevention of Corruption Act, 1988". Being aggrieved, the petitioner instituted an appeal before the Divisional Commissioner, North Assam Division, Tezpur, vide his appeal memo dated 31.07.2019. The said appeal not being disposed of, the office of the Deputy Commissioner, Dhemaji, having issued an advertisement dated 29.07.2019, inviting applications from eligible applicants for filling up of the post of Lot Gaon Bura, earlier held by the petitioner, led the petitioner to institute a writ petition being WP(C) No. 5713/2019.

6. This Court, vide order dated 09.08.2019, noticing that the appeal as preferred by the petitioner against the order dated 20.07.2019, issued by the Deputy Commissioner, Dhemaji, was pending disposal, the writ petition was disposed of by granting liberty to the petitioner to approach the appellate authority with an Interlocutory Application, which was directed to be so filed within 15(fifteen) days and thereafter, the appellate authority was required to pass appropriate orders thereon in accordance with law.

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7. The Co-ordinate Bench of this Court, also with a view to enable the petitioner to take the steps as required of him, directed that the advertisement dated 29.07.2019, shall be kept in abeyance for the period of 30(thirty) days. The petitioner, accordingly, in terms of the liberty granted by this Court vide the order dated 09.08.2019, approached the appellate authority by way of instituting an Interlocutory Application.

8. The office of the appellate authority, vide communication dated 06.09.2019, required the Deputy Commisioner, Dhemaji, to stay the recruitment process for appointment of a new Lot Gaon Bura for the villages, against which the petitioner was appointed as a Gaon Bura, till the disposal of the appeal so preferred by the petitioner.Thereafter, the appellate authority, on consideration of the appeal so instituted by the appellant herein, was pleased vide order dated 05.02.2021, to dismiss the appeal by holding that he did not find any merit in the appeal. Being aggrieved, the appellant has instituted the present proceeding.

9. At this stage, it is to be noted that while issuing notice in the matter, vide order dated 26.02.2021, this Court had kept the advertisement dated 29.07.2019 in abeyance.

10. Mr. K. Das, learned counsel for the petitioner by reiterating the facts as noticed herein above, has submitted that a Lot Gaon Bura has been held to hold a civil post and accordingly, the protection under Article 311 of the Constitution of India would stand extended to the services of a Gaon Bura. Mr. Das has submitted that a perusal of the show-cause notice dated 04.07.2019, would go to show that the appellant was charged with violation of duties and responsibilities of Lot Gaon Bura, as laid down in the Executive Instruction No. 164, basing on an allegation that he had issued a Residential Certificate dated 20.08.2018 to one Mantu Konwar, in spite of the fact that said Mantu Kumar was actually not a resident of the area as per the record of the jurisdictional Circle Officer. Mr. Das Page No.# 6/13

has submitted that the petitioner, in his written statement, had brought on record the background leading to the issuance of the said certificate as well as the existence of an undertaking given by said Mantu Konwar that the certificate if so issued, would be utilized only for the purpose of opening a bank account at Gogamukh.

11. Mr. Das, learned counsel for the petitioner, in the above circumstances has submitted that the Deputy Commissioner, Dhemaji, vide the order dated 20.07.2019, having removed the petitioner from the post of Lot Gaon Bura, purportedly, for involvement in "corrupt behaviors as defined in Prevention of Corruption Act, 1988", would clearly be not sustainable, inasmuch as, no allegation in this connection was leveled against the appellant in the show-cause notice dated 04.07.2019. In the event, the disciplinary authority had found that the appellant was guilty of commission of an offence, against which an allegation and/or a charge was not framed in the show-cause notice issued to him, it was required that before imposing any penalty upon the petitioner, the disciplinary authority ought to have issued a fresh show-cause notice in the matter to the appellant.

12. Mr. Das, learned counsel for the petitioner has submitted that the Hon'ble Supreme Court in the case of Kandarpa Sarma Vs Rajeswar Das & Ors., reported in (2011) 14 SCC 752 has already held that the post of Lot Gaon Bura is an executive post and that he holds a civil post and therefore, would be entitled to the protection as provided under Article 311 of the Constitution of India. Mr. Das has submitted that the disciplinary authority, basing on the written statement of the petitioner, had proceeded to remove him from his engagement although the ground for removing him was not borne out either from the show- cause notice dated 04.07.2019 and/or the written statement of the petitioner dated 11.07.2019. Accordingly, Mr. Das has submitted that the order dated Page No.# 7/13

20.07.2019 would mandate an interference from this Court.

13. Mr. Das, learned counsel has further submitted that although the petitioner had filed an appeal before the designated appellate authority, the appellate authority failed to appreciate the contentions raised by the appellant in the matter and by only referring to the comments of the Deputy Commissioner, Dhemaji, on the appeal petition so submitted by the appellant and the relevant records, the appellate authority proceeded to reject the appeal holding that the appellant had accepted his fault about issuing the Residential Certificate and had prayed to be excused. The appellate authority had also, in its order, noted that the jurisdictional Circle Officer had received an application from the petitioner, praying for cancellation of the Residential Certificate only on 01.06.2019. Mr. Das has further submitted that the show-cause notice dated 04.07.2019 being vague to the core of it and the same not having alleged that the petitioner had issued the certificate in question, after receiving illegal gratification for the purpose, it was not open for the disciplinary authority to remove him from his post by projecting that he was involved in the "corrupt behaviors, as defined in the Prevention of Corruption Act, 1988".

14. In the above premises, Mr. Das submits that the impugned order dated 01.06.2019, along with the order of the appellate authority dated 05.02.2021; and the show-cause notice dated 04.07.2019 would mandate an interference from this Court. Consequentially, it was stated that the advertisement dated 29.07.2019 would also mandate an interference.

15. Per contra, Mr. J. K. Goswami, learned Addl. Senior Government appearing for the respondent nos. 2 to 5 has submitted that against the petitioner, 05(five) nos. of complaints were received during his tenure as Lot Gaon Bura for the villages involved. It was further submitted that the Residential Certificate, issued by the appellant could have been misused for any purpose by the recipient of the Page No.# 8/13

same. It is further submitted by Mr. Goswami, learned counsel that the conduct of the appellant clearly exhibits negligence of duty on his part. Accordingly, Mr. Goswami submits that the respondent authorities had not erred in issuing the show-cause notice dated 04.07.2019. Mr. Goswami has further submitted that the petitioner was given an opportunity to submit his defense in the matter and accordingly, the petitioner had submitted his written statement. It is contended that a perusal of the written statement would go to show that the petitioner had admitted to the fact of issuing the said certificate to one Mantu Konwar, certifying therein that Mantu Konwar was a resident of village Silimpur although said Mantu Konwar was not a resident of the said village.

16. Mr. Goswami, learned counsel, by referring to the order dated 01.06.2019, issued by the Deputy Commissioner, Dhemaji, submits that the allegations leveled against the petitioner being one of his involvement in corrupt behavior, the allegation being admitted to by the appellant, his removal on the ground of involvement in corrupt behavior as defined in the provisions of Prevention of Corruption Act, 1988 would not mandate an interference from this Court. Mr. Goswami has further submitted that in view of the directions passed in the present proceeding, the further processing in the advertisement date 27.09.2019 was kept in abeyance.

17. I have heard the learned counsels appearing for the parties and also perused the materials available on record.

18. At the outset, it is to be noted that the Hon'ble Supreme Court in the case of Kandarpa Sarma (supra) had held that the post of Gaon Bura is an executive post in the sense that he works under the supervision of the Maujadar. It was further held that the Gaon Bura holds a civil post and therefore, would be entitled to the protection as provided under Article 311 of the Constitution of India.

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19. Having noticed the above position and that a Gaon Bura is entitled to the protection under the provisions of Article 311, it is to be noted that under the provisions of the Executive Instructions holding the field, more particularly, the provisions of Clause 162-A of the Executive Instructions so formulated under the provisions of the Assam Land and Revenue Regulation, 1886, the power to appoint, suspend and dismiss a Gaon Bura is vested in the jurisdictional Deputy Commissioner (now District Commissioner).

20. The provisions of Clause 164 of the said Executive Instructions, prescribes the duties required to be discharged by a Gaon Bura. Admittedly, in the present proceeding, the appellant had issued a Residential Certificate dated 20.08.2018, to one Mantu Konwar and therein, had certified that he was an inhabitant of village Silimpur. It was further certified that said Mantu Konwar was a resident of the Lot of the petitioner and he knew him very well. The contention of the petitioner is that the said certificate was so issued, basing on an undertaking (which is available in the records of the proceeding) given by said Mantu Konwar that he would be utilizing the certificate only for the purpose of opening a bank account at Gogamukh. The said undertaking was witnessed by 03(three) witnesses. Basing on the said undertaking, the petitioner had issued the certificate dated 20.08.2018 in the manner noticed herein above. However, subsequently, the petitioner, on coming to learn that the certificate issued by him to said Mantu Konwar was not utilized by him for the purpose it was stated to have been so requested, but, was issued for a different purpose i.e., for settlement of a Railway contract, the petitioner on 01.05.2019, had approached the jurisdictional Circle Officer by way of a representation, praying for cancellation of the said certificate. The said representation was followed by another representation on the same issue dated 01.06.2019.

22. The Addl. Deputy Commissioner (Revenue), Dhemaji, basing on the Page No.# 10/13

allegation of the petitioner, issuing the said Residential Certificate dated 20.08.2018, in favour of one Mantu Konwar although Mantu Konwar was not actually a resident of the area, the petitioner was charged with violation of duties and responsibilities as Gaon Bura, as laid down in the Executive Instructions No.

164. The allegation leveled against the petitioner and the charge framed thereon, against him in the show-cause notice dated 04.07.2019, being relevant is extracted herein below: -

"That, a Residential Certificate dated:-20/08/2018 was issued by you to Sri Mantu Konwar S/o Hema Konwar, Village-Silimpur, P. O & P.S-Gogamukh, District Dhemajl, Assam who is actually not a resident of that area as reported by Circle Officer, Gogamukh Revenue Circle.

You are therefore, charged with violation of dutles and Responsibilities of Gaonburas as laid down in Executive Instruction No.164."

23. A perusal of the said allegation leveled against the petitioner would go to reveal that the same only alleges that the petitioner had issued a Residential Certificate dated 20.08.2018, to one Mantu Konwar although he was not a resident of the area. There is no further allegation leveled against the petitioner that he had issued the said certificate for some extraneous consideration. The petitioner thereafter, submitted his written statement to the show-cause notice dated 04.07.2019 on 11.07.2019. The petitioner, in his written statement contended that Mantu Konwar was staying on rent in the house of one Ranjit Gogoi in village Silimpur. It was also contended that said Ranjit Gogoi along with two other people insisted for issuance of a Residential Certificate in favour of Mantu Konwar on several occasions. Thereafter, basing on a written undertaking given on 28.01.2019, by Mantu Konwar in the presence of 03 witnesses that the said certificate shall be only use for the purpose of opening a bank account, the petitioner had issued the certificate dated 20.08.2018. The said written statement of the petitioner while giving a background of the facts leading to the issuance of Page No.# 11/13

the certificate dated 20.08.2018, had only stated that the certificate was issued basing on an undertaking given by said Mantu Konwar in the matter. The petitioner in his written statement had not stated that the said certificate was so issued basing on some extraneous considerations.

24. Pursuant to the submission of the written statement by the petitioner on 11.07.2019, the Deputy Commissioner, Dhemaji, proceeded to issue an order dated 12.07.2019, removing the petitioner from the post of Lot Gaon Bura. The order dated 12.07.2019, being relevant is extracted herein below: -

"ORDER In exercise of the power conferred by Executive Instructions of Assam Land Revenue Regulation, No 162-A (2) (iv) (vide Govt. Notification No.RLR.187/2007/39 Dated Dispur, the 10 April, 2018), Shri Deva Doley, Village Headman (Gaonburah) of 15 No. Gogamukh Miri Lot is hereby removed from the post of Lot Gaon Burah for involvement in "Corrupt behaviours, as defined in the Prevention of Corruption Act, 1988" with immediate effect.

Sd/-

Deputy Commissioner, Dhemaji Dated Dhemaji the 1" June/2019."

25. A perusal of the said order dated 01.06.2019, would go to reveal that the petitioner was removed from the post of Lot Gaon Bura for involvement in "corrupt behaviors, as defined in the Prevention of Corruption Act, 1988. A perusal of the show-cause notice dated 04.07.2019, would go to reveal that therein no allegation of any corrupt practice was leveled against the appellant. There was no allegation of him, receiving illegal gratification for issuance of the certificate. Accordingly, the ground on which the petitioner was removed from his engagement as reflected in the order dated 20.07.2019, is a nonexistent ground. Neither from the show-cause notice dated 04.07.2019; nor from the written statement submitted by the petitioner on 11.07.2019, it can be construed that the appellant was guilty of the charge as reflected in the order dated 20.07.2019.

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26. In the event the disciplinary authority was of the view that the petitioner herein, was guilty of corrupt behavior, it was the bounded duty of the disciplinary authority before proceeding to invoke the said ground to remove him from his engagement, to issue to the petitioner herein, a show-cause notice, incorporating the materials basing on which the said satisfaction was so drawn by the disciplinary authority, in the order dated 20.07.2019.

27. The Hon'ble Supreme Court in the case of Kandarpa Sarma (supra) having held that a Gaon Bura was entitled to protection as provided under Article 311 of the Constitution of India. Provisions of article sub-Article 2 of Article 311 having provided that no person covered by the provisions of Article 311(1) shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges, the show-cause notice having not incorporated the charge basing on which the petitioner was removed, this Court, is of the view that prejudice was caused to the petitioner in the matter.

28. In the case on hand, there was no enquiry after the petitioner had submitted his written statement of defense.

29. In view of the above position, this Court is of the considered view that the disciplinary authority, in issuing the order dated 20.07.2019, exceeded its jurisdiction in the matter, rendering the order dated 20.07.2019 to be unsustainable.

30. In view of the above conclusion reached by this Court, it would not be required to examine any other contention raised by the respondents in the matter. Accordingly, the order dated 20.07.2019 along with order of the appellate authority dated 05.02.2021; stands set aside and quashed.

31. The order dated 20.07.2019 having been interfered, the same in view of Page No.# 13/13

the decision of the Hon'ble Supreme Court in the case of Dharampal Arora Vs Punjab State Electricity Board & Anr., reported in (2006) 13 SCC 593, wherein it was held that once the final order goes, all the orders from the date of Charge-sheet up to the date of passing of the final order becomes a nullity and redundant, the show-cause notice dated 04.07.2019 also stands set aside. Consequentially, the order of removal of petitioner being interfered with, he being deemed to continue as a Lot Gaon Bura, the advertisement dated 29.07.2019 also cannot be sustained and the same also stands set aside.

32. The respondents, more particularly, the District Commissioner, Dhemaji, is directed to reinstate the petitioner in his engagement as Gaon Bura for the villages concerned forthwith.

33. With the above observations and directions, the writ petition stands allowed.

JUDGE

Comparing Assistant