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Sri Naba Kumar BorgohaIn Vs. the State of Assam. - Court Judgment

LegalCrystal Citation
SubjectEducation
Courtguwahati High Court
Decided On
Case NumberWP(C) NO. 5752 OF 2007
Judge
Acts Punjab Municipal Act, 1911 - Section 22; Constitution - Article 311 (2).
AppellantSri Naba Kumar Borgohain
RespondentThe State of Assam.
Appellant AdvocateMr. P.J. Phukan, Adv.
Respondent AdvocateMr. R.P. Sarma; Mr. M.R. Adhikari; Mr. K.P. Sinha; Mr. A.K. Goswami; Mr. S. Banik, Advs.
Excerpt:
[a.s.bopanna j.] this writ petition is filed under articles 226 and 227 of the constitution of india praying to direct the respondents to consider the representations dated 12.7.10, as per ann-l & m by issue of writ in the nature of mandamus and etc......for the petitioner, mr. r. p. sharma, learned senior counsel assisted by mr. m. r. adhikary, learned counsel for respondent no. 6 and mr. a. k. goswami, learned senior counsel assisted by mr. s. banik, learned standing counsel representing for the karbi anglong autonomous council (kaac). 2. by this writ petition, the petitioner has prayed for a direction to the respondent authorities for allotment of his official duties, office room, other facilities etc. available to him as a senior uda in the office of howraghat higher secondary school, and for release of the loan amount sought for by him for treatment of his ailing widowed mother, with compensations etc. 3. the petitioner has alleged that he has been ill treated by the respondent no. 6, the principal of the howraghat higher.....
Judgment:
1. Heard Mr. P. J. Phukan, learned counsel for the petitioner, Mr. R. P. Sharma, learned senior counsel assisted by Mr. M. R. Adhikary, learned counsel for respondent No. 6 and Mr. A. K. Goswami, learned senior counsel assisted by Mr. S. Banik, learned Standing Counsel representing for the Karbi Anglong Autonomous Council (KAAC).

2. By this writ petition, the petitioner has prayed for a direction to the respondent authorities for allotment of his official duties, office room, other facilities etc. available to him as a senior UDA in the office of Howraghat Higher Secondary School, and for release of the loan amount sought for by him for treatment of his ailing widowed mother, with compensations etc. 3. The petitioner has alleged that he has been ill treated by the respondent No. 6, the Principal of the Howraghat Higher Secondary School on various ways. The petitioner has further stated that he was suspended from service on 18. 7. 2005 while he was serving as an UDA (Upper Divisin Assistant) at Howraghat Higher Secondary School ,under KAAC, Diphu. However, in the meantime the petitioner was re-instated in service on 7. 1. 2006 and he was transferred to Beloguri High School by demoting him to the post of LDA (Lower Division Assistant). Subsequently, the post of LDA was converted to the post of UDA and the petitioner was accordingly re-instated and transferred to Beloguri High School as UDA vide another order dated 10. 1. 2006. Subsequently, on consideration of the representation dated 2. 2. 2006 submitted by the petitioner, he was once again transferred to Howraghat Higher Secondary School as UDA and since then he has been rendering his service in his post without any blemish and negligence.

4. However, the petitioner states that he has not been allotted any office room and other facilities due to him as senior UDA of the Howraghat Higher Secondary School, which he availed earlier in the said school. It is further, contended on behalf of the petitioner that he has been harassed on a number of occasions at his work place, in various ways by the respondents. The petitioner further alleged that his arrear D. A. , increments and monthly salaries of several months have been held up causing financial hardship to run his family, as a consequence of which, he could not even give proper treatment to his ailing mother.

5. As regards the aforesaid allegations, the respondent No. 6, Principal of the Howraghat Higher Secondary School has submitted affidavit denying the statements of facts made by the petitioner in the writ petition. It has been stated on behalf of the respondent No. 6 that the petitioner has been assigned with official duties by handing over of important files and confidential documents of the Howraghat Higher Secondary School. However, the petitioner with a malafide intention manipulated the official records and had also misappropriated school fund in the past. It has been stated by the respondent No. 6 that the petitioner was handed over 18 nos. of important files of the aforesaid school, but the petitioner most negligently kept the same under lock and key with him and did not hand over the same to the school authority, which forced the Managing Committee to break open the lock to retrieve the same. The respondent No. 6by drawing attention of this Court to a representation submitted that the local public , students and staff of the school, alleged misconduct, habitual negligence of duties, willful insubordination, disorderly behavior during working hours, habitual absenteeism by the petitioner; and also alleged misconduct of asking/ receiving of money from the local public and students of the school.

6. Learned counsel for the petitioner submitted that the respondents-authorities in clear abuse of their power deprived the petitioner of his legitimate rights as an UDA in the school. In order to substantiate contentions made regarding denial of petitioners legitimate rights learned counsel relied on the following decisions:

(1) (2001) 6 SCC 260 (Tarlochan Dev Sharma V. State of Punjab & ors. ),(2) (2004) 3 SCC 553 (ABL International Ltd. & anr. V. Export Credit Guarantee Corporation Of India Ltd. & ors. ), (3) (1972) 4 SCC 730 (The State of Punjab & ors. V. Bakhtawar Singh & ors. ) and (4) 2000(1) GLT 227 (Abujam Amuba Singh V. State of Manipur & ors. ).

7. In Tarlochan Dev Sharma (supra) the Hon'ble Supreme Court while defining and explaining the meaning of 'abuse of powers' held as follows:

"11. The expression "abuse of powers" in the context and setting in which it has been used cannot mean use of power which may appear to be simply unreasonable or inappropriate. It implies a willful abuse or an intentional wrong. An honest though erroneous exercise of power or an indecision is not an abuse of power. A decision, action or instruction may be inconvenient or unpalatable to the person affected but it would not be an abuse of power. It must be such an abuse of power which would render a Councillor unworthy of holding the office of President. Inasmuch as an abuse of power would entail adverse civil consequences, the expression has to be narrowly construed. Yet again, the expression employed in Section 22 is "abuse of his powers or of habitual failure to perform his duties". The use of plural- powers, and the setting of the expression in the framing of Section 22 is not without significance. It is suggestive of legislative intent. The phrase "abuse of powers" must take colour from the next following expression-"or habitual failure to perform duties". A singular or casual aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving dishonesty of intention is "abuse of powers" within the meaning of Section 22 of the Act. The Legislature could not have intended the Occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision. "

8. In the case of Tarlochan Dev Sharma (supra), the appellant, elected as a Councilor of Rajpura Municipal Council, was also elected as President of the said Municipality. Here he had held the office for four months when he was served with a notice issued by the Principal Secretary, Department of Local Government, State of Punjab, requiring him to show cause as to why he would not be removed from the post of the President of the Municipality and the membership(sic) of the Municipal Council and also why he would not be restrained from contesting elections of the Municipal Council for the next five years. The notice leveled three charges against him. The Principal Secretary, Department of Local Government, State of Punjab after hearing the incumbent passed order removing the appellant from the President ship of the Municipality Council of Rajapura. As against the aforesaid order, while interpreting Section 22 of the Punjab Municipal Act, 1911, the Hon'ble Supreme Court explained the meaning of the words 'abuse of powers' appearing in Section 22 of the Act. Therefore, I am of the considered view that the above decision rendered by the Hon'ble Supreme Court in Tarlochan Dev Sharma (supra), being in relation to violation/abuse some statutory power, cannot be applied in the present case.

9. Learned counsel for the petitioner relied on the decision of in order to substantiate that the writ Court has got ample jurisdiction to redress the grievance of the petitioner even in spite of involvement of disputed question of facts. In ABL International Ltd. (supra) it has been held by the Hon'ble Supreme Court as follows :-

"27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition:

(a)In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.

(b)Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.

(c)A writ petition involving a consequential relief of monetary claim is maintainable. "

10. Regarding non-payment of salaries and other dues alleged by the petitioner, the respondent No. 6 has categorically asserted and affirmed in his affidavit full payment of the dues such as, regular increments and all other allowances, which was available to the petitioner, has been made in terms of the rules. Learned counsel for the respondent No. 6 ,in course of his argument submitted that by a letter dated 08. 12. 2009 addressed to the Inspector of Schools, Diphu, the respondent No. 6, Principal of the Howraghat Higher Secondary School, specifically stated that all the necessary dues stated to beoutstanding by the petitioner, have been paid fully and finally and the petitioner has been drawing his monthly salary, increments etc. duly and regularly. Learned counsel for the petitioner has submitted that though HUDCO Loan was obtained as far back in the year 2002- 2003, by the petitioner but the loan was not instantly paid to him when he was in utter need of money for the treatment of his ailing mother. Learned counsel for the petitioner further submitted that when a government employee is in utter need of financial assistance he is entitled to apply for loan from his own GPF account, but this facility was denied to the petitioner.

11. In reply to the above, respondent No. 6 also asserted in his affidavit that the petitioner availed HUDCO loan for an amount of Rs. 3. 00 lacs in 2002-2003 from the State Bank of India. Further, the respondent confirmed in his affidavit that the petitioner also availed GPF loan of Rs. 21,000/- from the office and was also paid arrear etc. to the tune of Rs. 1,03,029/-. The petitioner did not reply to the above statement of facts made by the respondents. Therefore, I do not propose to address on these disputed questions of facts. Accordingly the instant allegation made by the petitioner regarding non- payment of loan etc. by the respondent also is not established.

12. Mr. R. P. Sharma, learned Sr. Counsel appearing on behalf of the respondent No. 6 has contended that the respondent has denied whatever allegations the petitioner has made in this petition, and further submitted stated that all the requirements have been complied with and therefore, the petitioner can not raise some disputed question of fact, which may not be possible for this Court to dispose of. As a matter of fact it is a settled principle of law that a disputed question of fact cannot be adjudicated by a writ Court by resorting to a non- adversarial method. In any view of the matter without any detailed claim for non payment of any specified amount of money for any specified period and in absence any reply or counter to the statement of fact made by he respondent No. 6, , this court considers that it would not be proper to venture to decide the such general question of facts raised by the petitioner in this writ petition.

13. Further more, apparently the decision of the Hon'ble Supreme Court in ABL International Ltd. (supra) has been rendered in respect of disputes arising out of a contractual obligation of the State. Therefore, the decision rendered by the Hon'ble Supreme Court in this context, I am afraid, may not apply in the present case.

14. Learned counsel for the petitioner further contended that the deprivation/curtailment of existing right, advantage or benefit enjoyed by a Government servant without complying rules of natural justice is illegal and in support of his contention, learned counsel for the petitioner relied on the decision of the Hon'ble Supreme Court reported in (1989) 1 SCC 764 (Hindustan Petroleum Corporation Ltd. V. H. L. Trehan & ors. ), wherein the Hon'ble Supreme Court held as follows :- "11. One of the contentions that was urged by respondents 1 to 4 before the High Court at the hearing of the writ petition, as noticed above, is that unguided and arbitrary powers have been vested in the official by sub-section (1) of Section 11 for the alteration of the terms and conditions of service of the employees. It has been observed by the High Court that although the terms and conditions of service could be altered by CORIL, but such alteration has to be made 'duly' as provided in sub-section (2) of Section 11 of the Act. The High Court has placed reliance upon the ordinary dictionary meaning of the word 'duly' which, according to Concise Oxford Dictionary, means 'rightly, properly, fitly' and according to Stroud's Judicial Dictionary, 4th edn. , the word 'duly' mans 'done in due course and according to law'. In our opinion, the word 'duly' is very significant and excludes any arbitrary exercise of power under Section 11(2). It is now a well established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a government servant without complying with the rules of natural justice by giving the government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a government servant will offend against the provision of Article 14 of the Constitution. Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular cannot, therefore, be sustained as it offends against the rules of natural justice. "

15. Hon'ble Supreme Court in Hindustan Petroleum Corporation Ltd. (supra), the reference is in respect of curtailment of some specified statutory right enacted in terms of the existing provision of the Act. Therefore, it would not be appropriate to draw an analogy in respect of the purported right of the petitioner to sit in a particular seat and to work in the office according to his own choice in an institution. Variation or alteration of entrustment of duty, allotment of a sitting place to an employee in the office is carried out depending on administrative exigency. Therefore, I am of the considered view that the decision in Hindustan Petroleum Corporation Ltd. (supra) referred to above, may not be applicable in the present context.

16. The decision relied on by the learned counsel for the petitioner in Bakhtawar Singh & ors (supra), relates to validity of removal from the office of the concerned respondents, which, in my opinion, is not the subject under examination in this writ petition.

17. Learned counsel for the petitioner further contended that while depriving the petitioner from sitting in the place where he was previously sitting as U. D. Assistant and also by not allotting the duty assigned to U. D. Assistant, the respondent- authority took into consideration the past conduct of the petitioner. Learned counsel for the petitioner submitted that the authority concerned could not have taken into consideration the past conduct of the petitioner while allotting the duty in the office. In this context, learned counsel for the petitioner relied on a decision reported in 2000(1) GLT 227 (Abujam Amuba Singh V. State of Manipur & ors. ), relevant extract of which reads as follows :-

( 2 ) From the order it will be seen that the authority took into consideration his past conduct, but that was not told to the employee whem the second show cause notice was issued. It is the requirement of law that when the authority wants to take into account the past conduct of the employee, he must be notified for it. If any authority is required for this proposition, one may have a look at AIR 1964 SC 506 (The State of Mysore V. K. Manche Gowda) where the Supreme Court in para 7 the law has been laid down as follows:

"under Art 311 (2) of the Constitution, as interpreted by this court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the government servant must be told of the grounds on which it is proposed to take such action: see the decision of this court in the state of Assam V. Bimal Kumar Pandit, Civil appeal No. 832 of 1962 D/-12. 2. 1963. (AIR 1963 SC 1612 ). If the grounds are not given inthe notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would means that the main reason for the proposed punishment was withheld from the knowledge. of the Government servant.

However, in this case the decision of the Court was rendered in the context of dismissal of the petitioner in a departmental enquiry, wherein scrupulous observation of the procedure by giving reasonable opportunity to explain the past conduct in a disciplinary proceeding has been emphasized. Therefore, I am of the considered view that the decision rendered in Abujam Amuba Singh (supra) is not applicable in the present context.

18. Mr. A. K. Goswami, learned Sr. counsel appearing for the KAAC has submitted that non-allotment of room and non allotment of work would imply that the petitioner is not working in the government department, which reflects lack of sincerity and devotion to duty of the government servant and has submitted that in the facts and circumstances of this case the writ petition deserves to be dismissed.

19. As a matter of fact allotment of duty and assignment of work is another grievance of the petition which, however, apparently is within dominion of the controlling officer and/or the administrative officer of the employee concerned, in a government department. Employer would know the quality and the extent of the work it would like to extract from the individual employee concerned. Quality of work, quantity of work, which is required to be executed in a Government Department, is wholly controlled by the Controlling Officer, which in case of the petitioner is the principal of the School. Unless, there are allegations of violation of any of the rights enshrined under the constitution or service rules, or any other statutory rights, there is no scope for this Court to venture and to award a relief which is obscure and uncertain.

20. In such matters it would not be apposite for this Court to issue a direction interfering with purely administrative actions, such as allotment of work to individual employees of the department concerned, the place where it will be convenient for him to seat in the office etc. ,when explicit violation of any such statutory rule is not established.

21. On careful consideration of the rival contention made by the learned counsel appearing for the parties it appears that allotment/distribution of duties to a government servant is the prerogative of the Controlling Officer or the administrative head of the concerned department. As a matter of fact, providing adequate facilities at the work place is the obligation of the employer which will help him to extract the best service from the employee working in the establishment. However, distribution of work in the office to the respective employees is within the exclusive realm of the Controlling Officer. Therefore, in the facts and circumstances of the case, granting/ allowing the prayer of the petitioner for allotment of duties etc. Enjoyed by a UDA, by this Court ,would not be appropriate.

22. Upon due consideration of the facts and circumstances as discussed above, this Court is of the considered view that no relief whatsoever can be extended to the petitioner in the present writ petition. Accordingly, the writ petition stands dismissed.

23. However, considering the facts and circumstances of the case, I pass no order as to costs.


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