Allowed

Basanta Kumar Borah v. the State of Assam and 4 Ors.

Gauhati HC4 Feb 2020WP(C)/2809/2014

Case brief

AI extract

What is this about?

The Gauhati High Court held that upon provincialisation, college employees become government servants. The Governing Body lacks authority to impose penalties; only the State Government can do so based on enquiry reports furnished by the college.

What did the court decide?

Impugned removal resolution set aside; petitioner deemed in service; State directed to decide on validity of enquiry and penalty within two months.

Basanta Kumar Borah Vs the State of Assam… — Pension and Retirement Benefits | Gauhati HC (2020)

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Page No.# 1/7

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GAHC010247202014

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

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Case No. : WP(C) 2809/2014

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1:BASANTA KUMAR BORAH

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S/O LT. TUARAM BORAH, R/O LEHETIA GAON, P.O. BAHONA, P.S. BHOGDOI T.O.P., DIST- JORHAT, ASSAM, PIN-785101

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VERSUS

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1:THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE SECRETARY, GOVT. OF ASSAM, HIGHER EDUCAION, DISPUR, GHY-6

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2:THE DIRECTOR OF HIGHER EDUCATION ASSAM KAHILIPARA GHY-19

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3:THE BAHANA COLLEGE BAHONA REPRESENTED BY THE PRESIDENT OF THE GOVERNING BODY OF THE COLLEGE JORHAT-785101

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4:THE PRINCIPAL BAHANA COLLEGE BAHANA JORHAT-785101

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5:THE ENQUIRY OFFICER SRI AKHIL KR. DAS C/O BAHANA COLLEGE BAHANA JORHAT-78510

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Advocate for the Petitioner : MR.H BURAGOHAIN

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Advocate for the Respondent : SC, EDU

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BEFORE HONOURABLE MR. JUSTICE N. KOTISWAR SINGH

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ORDER

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Date : 04-02-2020

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Heard Mr. H. Buragohain, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned Standing Counsel, Education (Higher) Department for respondent Nos. 1 & 2 and Mr. P. Mahanta, learned counsel assisted by Ms. P. Saharia, learned counsel for respondent Nos. 3 to 5.

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In this petition, the petitioner has challenged the removal of the petitioner from service of the Bahona College, Bahona, Jorhat from the post of Office Superintendent/Supervising Assistant vide Resolution of the Governing Body of the said College held on 12.05.2012.

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Two grounds have been raised in challenging the said impugned Resolution of the Governing Body of the College in removing the petitioner from service.

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Firstly, it has been alleged that the Governing Body was not the competent authority to issue such removal order.

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Secondly, it has been also contended that assuming that they had the authority to do so, yet such removal order could not have been issued without giving a copy of the enquiry report preceding the said decision and also giving opportunity to the petitioner to submit his views and objections to the findings of the enquiry report and also the proposed action, if any. Having not done so, the said removal order is also vitiated on this ground.

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Without coming to the detail facts of the case, it will suffice to mention that the petitioner initially entered service in the said Bahona College in the year 1974 as a Typist when it was at the stage of non-Government College enjoying deficit grants in aid. Subsequently, he was promoted to the post of Upper Division Assistant (UDA) in the year 1985. Thereafter, in the year 1999, he was promoted to the post of Office Superintendent by the College authorities. Subsequently, in terms of the Assam College Employees (Provincialisation) Act, 2005, the said Bahona College also came to be provincialised by

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Page No.# 3/7

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provincialising the service of the petitioner and other teaching and non teaching staff against sanctioned posts created by the State Government in this regard.

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As regards the aforesaid factum of provincialisation of the service of the petitioner to the post of Office Superintendent in terms of the aforesaid Assam College Employees (Provincialisation) Act, 2005 is concerned, there is no dispute about it.

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According to the learned counsel for the petitioner, once the service of the petitioner had been provincialised in terms of the aforesaid Act of 2005, he becomes virtually a Government employee as provided under Section 3 of the aforesaid Act. In such an event, being a Government employee, only the State Government was competent to take any disciplinary action including imposition of penalty which power has been usurped by the Governing Body in the manner mentioned above. Accordingly, removed the petitioner from service by a resolution of the Governing Body, which does not have any authority to do so is illegal.

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In other words, the Governing Body is functus officio as far as taking any disciplinary action against a provincialised government servant is concerned and accordingly, it has been submitted that since the Governing Body of the College was not the competent authority and as the College was functioning under the Government, the Governing Body had no jurisdiction or authority to issue the removal order.

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As regards the second contention, learned counsel for the petitioner has reiterated that the petitioner was not given any copy of the enquiry report nor was given an opportunity to submit his views on the findings of the Enquiry Report before the Government Body took the aforesaid Resolution to remove him and as such, it has been accordingly submitted that on both the counts the impugned order is liable to be set aside.

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Mr. P. Mahanta, learned counsel for respondent Nos. 3 to 5 has contested the writ petition by stating that it cannot be said that the Governing Body has no authority or responsibility towards the employees of the College.

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It has been submitted that in the present case, because of serious irregularities committed by the petitioner, the State Government had authorized to take necessary steps for drawing departmental proceeding against the petitioner to place under suspension and submit the same along with Governing Body’s Resolution to the Directorate of Higher Education, Assam at an early date as communicated by Director of Higher Education, Assam

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in his letter addressed to Principal, Bahona College, Jorhat vide No. G(B) Misc. 43/2010/2015, dated kahilipara 24.01.2011.

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Accordingly, it has been submitted that it is not that the Governing Body of the College usurped power and authority of the State Government to initiate the departmental proceedings. In fact, the petitioner has not raised any issue about the drawing of the departmental proceeding against the petitioner and also in placing him under suspension. The petitioner has raised objection only as regards the penalty imposed and accordingly, it has been submitted that since the Governing Body has the authority as authorised by the State Government to draw departmental proceeding against the petitioner which also includes the power to punish, it cannot be said that the decision taken by the Governing Body is illegal.

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As regards the second contention, it has been submitted that the petitioner had been given a copy of the Enquiry Report and also given the opportunity to submit his views on the same after the decision was taken by the Governing Body which, of course, however, has been contested by learned counsel for the petitioner by stating that the Governing Body had already taken the decision, giving an opportunity of hearing after the decision had been taken amounts to a futile exercise.

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Mr. K. Gogoi, learned Standing Counsel, Education (Higher) Department appearing for the State, on the basis of the relevant statues and rules, has submitted that once a person, even if was appointed by a Governing Body of a College before its provincialisation, the moment the provincialisation takes place in terms of Assam College Employees (Provincialiation) Act, 2005, he becomes an employee of the Government for all practical purposes on and from the date the College has been under private deficit grants in aid as mentioned in Section 3 of the aforesaid Provincialiation Act of 2005 and as such, it is only the State Government which has the authority to initiate disciplinary proceeding against such person and also to impose penalty as provided under the Assam Service (Discipline and Appeal) Rules, 1964 and as such, since the aforesaid procedure adopted by the Governing Body of the said College is not inconformity with the aforesaid Act and Rules motioned above, the impugned order issued by the Governing Body also cannot be sustained in law.

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Heard learned counsel for the parties and perused the materials on record.

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The undisputed facts are that the petitioner was initially appointed by the authority of the College while it was a private college enjoying certain grants in aid from the State

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Government and the petitioner was also appointed to the post of Office Superintendent by the College Authorities before its provincialisation.

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In other words, it can be said that the appointing authority of the petitioner was the Governing Body of the College. However, the entire picture changes after the said College was provincialised in terms of the Assam College Employees (Provincialisation) Act, 2005. The status of such provincialised employees of such provincialised colleges is to be found in Section 3 of the aforesaid Act.

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The relevant portion of Section 3 of the aforesaid Act of 2005 reads as follows:

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“3. Employees to be provincialised - Subject to the provisions of Article 30 and 309 of the Constitution of India, all employees of the Colleges, save and except the employees who exercise option to continue in the existing terms and conditions of service under clause (d) below, shall be deemed to have become the employees of the Government on and from the date on which the Colleges have been brought under the deficit system of grants-in-aid, on the following terms and conditions, namely-

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(a) all rules including the rules of conduct and discipline, which are applicable to the Government servants of corresponding grade similarly situated shall be applicable [to the extent of their applicability is not contradictory to the provisions of this Act and the rules made thereunder.

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(b) …….

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……….”

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Perusal of the aforesaid Section 3 would clearly indicate that once provincialiation takes effect, all such employees who have been provincialised also will be deemed to be an employee of the State Government and they will be subject to the rules of conduct and discipline which are applicable to the Government servants of corresponding grade similarly situated, thus, from the date the college is provincialised. Though the petitioner was initially appointed by the Governing Body of the College, he shall be deemed to be a Government employee after their provincialisation and accordingly, it shall be deemed that the Government is the appointing authority, in which event, in matters relating to conduct and discipline has to be governed by the Rules as applicable in the State, i.e. Assam Service (Discipline and Appeal) Rules, 1964.

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Perusal of the aforesaid Rules does not indicate that the Governing Body of a provincialised college has been given any authority or power to impose any penalty to an employee whose service has been provincialised under the aforesaid Provincialisation Act of 2005.

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Though the Director of Higher Education, Assam may have authorised the College to draw the disciplinary proceeding as mentioned by Mr. Mahanta, learned counsel for the College authorities vide letter dated 24.01.2011, it is merely a delegation of the authority for the purpose of conducting disciplinary enquiry but the Governing Body does not have any authority to take the decision on conclusion of such departmental enquiry. Any decision to be taken pursuant to any enquiry has to be that of the State Government and as such, even if the Resolution has been taken by the Governing Body to remove the petitioner from service, it will be merely of an opinion and it will not have any binding effect on the petitioner unless the Government takes a decision in that regard on the basis of the records of the enquiry report to be furnished by the College authorities to the State Government.

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Mr. Mahanta, learned counsel for respondent Nos. 3 to 5 submits that the College Authorities has submitted a detail enquiry report to the State Government on 24.07.2012. In such a situation, it is for the State Government to take a decision as regards the enquiry which was conducted by the College authorities and to impose any penalty on the petitioner and it is not for the Governing Body to do so.

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In that view of the matter, this petition is allowed by declaring that the impugned Resolution taken by the Governing Body of the College held on 12.05.2012 will be merely of a recommendatory in nature and it is for the State Government to take a decision as regards any such Resolution that may be taken by the Governing Body and the State Government will take its own independent decision based on the records of the departmental enquiry that may be furnished by the College Authorities.

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Accordingly the impugned order of removal will not have any effect on the petitioner and the petitioner shall be deemed to be on service till appropriate order is issued by the State Government in that regard.

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Since it has been stated that, in the meantime, the petitioner has already retired from service on 31.08.2010. i.e. before the impugned Resolution was taken, the Government will take a call and decide as regards the validity of the enquiry as well any penalty if at all could

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be imposed against the petitioner by following the due procedure laid down under the Assam Services (Discipline and Appeal) rules, 1964. The aforesaid exercise shall be undertaken as expeditiously as possible, preferably within a period of 2 (two) months from the date of receipt of a certified copy of this order.

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Since, the impugned order of removal dated 12.05.2012 has been set aside by this Court, the petitioner will be entitled to all the benefits including retiral benefits subject to any order that may be passed by the State authorities in accordance with law within a period of 2 (two) months.

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JUDGE

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Comparing Assistant

Basanta Kumar Borah v. the State of Assam and 4 Ors.

Case brief

What is this about?

What did the court decide?

Basanta Kumar Borah v. the State of Assam and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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