Disposed

Mozahar Ali Mondal v. the State of Assam and 2 Ors.

Gauhati HC3 Jun 2022WP(C)/3538/2022

Case brief

AI extract

What is this about?

The Gauhati High Court held that the Commissioner and Secretary must exercise an independent mind on the petitioner's representation regarding disciplinary penalties. The court directed the authorities to provide the petitioner an opportunity of being heard before passing a reasoned order.

What did the court decide?

The petitioner was granted an opportunity of being heard, and the Commissioner was directed to pass a reasoned order within two months after considering the representation independently.

Mozahar Ali Mondal Vs the State of Assam and 2 Ors. — Service and Employment | Gauhati HC (2022)

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Page No.# 1/4

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GAHC010095962022

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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)/3538/2022

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MOZAHAR ALI MONDAL

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S/O. LT. KHAMIR UDDIN MONDAL, R/O. WARD NO.13, P.O. GOBINGAPUR, DIST. GOALPARA, ASSAM.

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VERSUS

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THE STATE OF ASSAM AND 2 ORS.

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REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPTT., DISPUR, GUWAHATI-781006.

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2:THE DIRECTOR OF SECONDARY EDUCATION

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ASSAM KAHILIPARA GUWAHATI-19.

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3:THE INSPECTOR OF SCHOOLS

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G.D.C. GOALPARA DIST. GOALPARA ASSAM PIN

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Advocate for the Petitioner : MR. B RAHMAN

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Advocate for the Respondent : SC, ELEM. EDU

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Page No.# 2/4

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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O R D E R

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03.06.2022

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Heard Mr. TJ Mahanta, learned counsel for the petitioner and Mr. R Mazumdar, learned counsel for the respondents No. 1, 2 and 3 being the authorities in the Elementary Education Department as well as Secondary Education Department of the Government of Assam.

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The petitioner, who was the in-charge Principal of PR Government HS and MP School, Goalpara, was subjected to a disciplinary proceeding in which the order dated 16.09.2011 of the Director of Secondary Education, Assam was passed. By the said order of 16.09.2011, the following punishments were imposed on the petitioner:-

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“Having regard to the report of the Enquiry Officer, I impose the penalty of withholding 5(five) increments with cumulative effect of the Govt. servant under Rule 9 of the Assam Services (Discipline and Appeal) rules, 1964.

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The Govt. servant is re-instated in his substantive post which he held prior to his suspension. The period spent on suspension shall not be treated as on duty. The period will be treated as on duty only for pensionery benefit.”

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A reading of the order dated 16.09.2011 would go to show that there was a withholding of five increments with cumulative effects from the date of the order and further, his earlier period of suspension be treated to be not on duty. It is stated that the petitioner was under suspension for a period from 08.06.2010 to 16.09.2011.

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By treating the petitioner to be not on duty during the suspended period, it can be accepted that the appropriate salary and allowances for the said period would not be paid except for the subsistence allowances that may have already

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been paid. But at the same time, it also cannot be accepted that if any increment was due to the petitioner during the suspended period, the same will also not be given its due consideration.

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In the aforesaid circumstances, the petitioner had submitted a representation dated 09.12.2021 before the Commissioner and Secretary to the Government of Assam in the Secondary Education Department. In response thereof, the Commissioner and Secretary had called for a report from the Director of Secondary Education, Assam and the Director by the communication dated 25.03.2022 had submitted a report. But in the report, it was also provided that the petitioner was found guilty of negligence in maintaining cash books, irregular collection of funds and absence from duty etc and therefore, the penalty imposed against him cannot be withdrawn. The petitioner in this writ petition is aggrieved to the extent that when the representation was made before the Commissioner and Secretary, it is for the Commissioner to take his own independent decision on the claim of the petitioner and if a report was called from the Director, it was only for the purpose of submitting the factual requirements to enable the Commissioner to take a decision on the representation of the petitioner.

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In the circumstances, the view expressed by the Director that the penalty cannot be withdrawn as because of the nature of the charges, be not acted upon by the Commissioner in taking his own independent decision on the representation of the petitioner made on 09.12.2021. In deciding the representation, the Commissioner and Secretary may apply his own independent mind on the claim being made and in order to facilitate the process, the petitioner be also given an opportunity of being heard. The Commissioner may inform the petitioner about the date, time and venue of the hearing that may

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take place and thereafter pass a reasoned order.

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The reasoned order be passed within a period of two months from the date of receipt of a certified copy of this order.

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The writ petition is disposed of as indicated above.

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JUDGE

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Comparing Assistant

Mozahar Ali Mondal v. the State of Assam and 2 Ors.

Case brief

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Mozahar Ali Mondal v. the State of Assam and 2 Ors.

Case brief

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