Petitioner, a Grade-III employee, challenged his suspension via writ petition seeking reinstatement. The court held the petition premature as the disciplinary authority had not yet decided on the enquiry report or forwarded specific order. Petition rejected.
Writ petition rejected as not maintainable.
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GAHC010105912019
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3246/2019
1:MONGAL MARAK
S/O. LATE SURIYA MARAK, LDA SERVING IN HE SONAPUR COLLEGE, VILL. BANUWARI BORKHAT, P.S.- SONAPUR, DIST. KAMRUP(M), ASSAM.
VERSUS
1:THE STATE OF ASSAM AND 3 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (HIGHER) DEPARTMENT, DISPUR, GUWAHATI-6, ASSAM.
2:THE DIRECTOR OF HIGHER EDUCATION ASSAM KAHILIPARA GUWAHATI-19.
3:THE PRESIDENT GOVERNING BODY SONAPUR COLLEGE SONAPUR KAMRUP(M) ASSAM.
4:THE PRINCIPAL SONAPUR COLLEGE SONAPUR KAMRUP(M) ASSAM
Advocate for the Petitioner : MR. B KHAKHLARY
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Advocate for the Respondent : SC, HIGHER EDU
BEFORE
HON' BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
Date : 07-06-2019
Heard Mr. B Phukan, learned counsel for the petitioner and Mr. R Mazumdar, learned Standing counsel, Higher Education Department for the respondent Nos. 1 and 2.
Petitioner herein a Grade-III employee, i.e., LDA in Sonapur College, Sonapur, a provincialised College of the State. Because of his unauthorized absence in service, the college authority vide Resolution No. 12 dated 14.10.2014 resolved to suspend the petitioner from service which was approved by the Director of Higher Education, Assam on 27.07.2015. Thereafter, a disciplinary proceeding was initiated against the petitioner and accordingly, on 25.11.2016, Memorandum of Charge-Sheet, Statement of Article of Charges along with the List of Documents and Witnesses were furnished to him. The Disciplinary Authority enquired into the matter appointing an Enquiry Officer in which the petitioner participated in the proceeding. The Enquiry Officer on 06.02.2017 submitted the enquiry report and on 25.05.2017, the Directorate of Higher Education, Assam communicated the petitioner with the said enquiry report of the Enquiry Officer dated 06.02.2017 along with the Resolution No. 1 of the college authority dated 23.03.2017, whereby it resolved to discharge the petitioner from service. By communication dated 25.05.2018, the Director of Higher Education, Assam issued show-cause notice to the petitioner with regard to the proposed action, i.e., removal of him from service and to submit his reply within 10 (ten) days and the petitioner on 13.06.2018 submitted such reply before the DHE, Assam. The said Director vide communication dated 10.01.2019 informed the petitioner through the college authority as to whether he will opt for voluntary retirement from service and to intimate the said authority within 10 (ten) days and accordingly, the college authority by its communication dated 24.04.2019 informed the petitioner to submit his option as to whether he will opt for voluntary retirement from his service w.e.f. 06.05.2019 and to intimate his decision to the DHE, Assam in that regard.
In the meanwhile, the petitioner has filed a representation before the Commissioner & Secretary, Govt. of Assam, Higher Education Department of the State with regard to the said finding of the Enquiry Officer dated 06.02.2017, though the Director of Higher Education, Assam has not
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passed any order being the disciplinary authority with regard to said finding of the Enquiry Officer dated 06.02.2017.
Hence, this writ petition by the petitioner to set aside the impugned suspension order of the petitioner dated 11.08.2015 and to reinstate him in service in a substantive post of LDA in said Sonapur College, Sonapur.
It is seen from the enquiry report of the Enquiry Officer dated 06.02.2017 that the petitioner participated in the disciplinary proceeding initiated against him and that the Director of Higher Education, Assam, being the employer and the disciplinary authority is yet to pass necessary order with regard to the disciplinary proceeding initiated against the concerned delinquent, i.e., the petitioner. Moreover, the petitioner has also not submitted the option given to him pertaining to his voluntary retirement from service.
Considering the above, the Court finds this writ petition to be pre-matured, as the respondents including the disciplinary authority, i.e., the DHE, Assam is yet to take any such decision with regard to the finding of the Enquiry Officer dated 06.02.2017 pertaining to disciplinary proceeding initiated against the petitioner.
Accordingly, this writ petition, being not maintainable, stands rejected.
Needless to say that the petitioner may approach the appropriate forum as per the relevant Rules with regard to any such order/future action of the authority concerned.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the writ petition seeking reinstatement is maintainable given that the disciplinary authority has not yet passed an order on the enquiry report.
Whether the petitioner is entitled to a substantive post of LDA after suspension and pending disciplinary proceedings.
MONGAL MARAK
THE STATE OF ASSAM
MANASH RANJAN PATHAK
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
