Anjan Kumar Bhattacharjee vs The State of Assam and Others

K. Sreedhar Rao, Acting C.J—Heard Mr. B. Goswami, counsel for the petitioner, and Mr. M. Choudhury, Standing Counsel, Education Department, appearing on behalf of the respondent Nos. 1 and 2. Heard also Mr. G. Uzir, counsel for the respondent Nos. 3 and 4.

The appellant was working as Principal in the provincialised college, Hojai. There were charges of misappropriation by different transactions against the appellant. The appellant was suspended. The Vice-Principal was made in-charge Principal. The Principal was also an ex-officio Secretary of the Governing Body. The Vice-Principal, upon becoming in-charge Principal, was also made the Secretary of the Governing Body. The articles of Charges were prepared and issued by the in-charge Principal, who was also said to be the Secretary of the Governing Body. The Governing Body appointed a retired Principal as an inquiry officer. The charge memo was issued to the appellant and he did not file any reply to the charge memo. The appellant was suspended before institution of inquiry. The appellant challenged the order of suspension in the writ petition before this Court in WP (C) No. 1363/07. The appellant submitted a memo before the inquiry officer that he has challenged the order of suspension; therefore, the inquiry should not be continued. The appellant did not appear before the inquiry authority and participate in the inquiry. The inquiry authority on the basis of the report and document, found the appellant guilty and the Governing Body dismissed the appellant and sent the order of dismissal to the Director of Higher Education for approval of the dismissal, who eventually passed the impugned order approving the dismissal. The appellant aggrieved by the said order, has filed the writ petition. The learned Single Judge in view of the grave charge of misappropriation based on record found that the order of dismissal is sound and proper and dismissed the writ petition. Hence, this appeal.

The learned counsel appearing for the appellant urged the following contentions to assail the order of the learned Single Judge:-

(a) Section 6 of the Assam College Employees (Provincialisation) Act, 2005, states that appointments of both teaching and non-teaching posts in the Colleges, shall be made by the Director of Higher Education, Assam, on the basis of selection and recommendation of the Governing Body of the respective College. In the context of the said Rule, it is argued that the Director of Higher Education is the appointing authority and the Government Body cannot be considered as an appointing authority; therefore, it has no jurisdiction to initiate the inquiry.

(b) The inquiry authority has not recorded evidence of any witnesses. It is only based on documents that he found the appellant guilty. In the absence of oral evidence, it was not possible for the inquiry authority to come to any conclusion on the guilt or otherwise, which is only based on records without corroborative oral evidence.

(c) The inquiry authority accepted the report of Arup Bhattacharjee, an Executive Magistrate, but he was not examined as a witness though his report was relied on in respect of one of the charges.

(d) The Governing Body not being the appointing and disciplinary authority, it has no jurisdiction to conduct inquiry and pass an order of dismissal. Hence, the order of dismissal passed is illegal.

The learned Single Judge has failed to take into consideration the above legal aspects of the matter and dismissed the writ petition.

Mr. Choudhury, Standing Counsel for the Education Department refers to Section 2(d) of the Assam College Employees (Provincialisation) Act, 2005. Section 2(d) defines "Governing Body", which means the body constituted by the Government in accordance with the provisions of the Assam Non-Government College Management Rules, 2001 is the Governing Body.

Rule 18 of the Assam Non-Government College Management Rules, 2001 contemplates that prior approval of the Director is necessary. Rule 19 envisages the duties of the Governing Body.

Rule 21 contemplates that the Governing Body is authorized to determine the discipline and conduct of teaching and non-teaching staff of a college.

In view of the provision of Rule 21, the inquiry held by the Governing Body is legal and tenable. Therefore, there is no illegality in the order of dismissal passed.

Upon thorough consideration of the submissions made at the Bar, Rule 21 of the Assam Non-Government College Management Rules, 2001 cannot have any application to the provisions of the Assam College Employees (Provincialisation) Act, 2005.

The Section 6 of the Assam College Employees (Provincialisation) Act, 2005 reads as follows:

"6. Selection and appointment of employees � Appointments of both teaching and non-teaching posts in the Colleges shall be made by the Director of Higher Education, Assam on the basis of selection and recommendation of the Government Body of the respective College in accordance with the Rules and Procedure of the Government in force:

Provided that some of the powers of the Appointing Authority may, however, be delegated to the Governing Body of the colleges as may be provided in the rules."

The above provisions clearly declare that it is the Director of Higher Education, who is the appointing authority. A proviso is made to delegate some of the powers of the appointing authority to the Governing Body under the Rules. However, Rules were not framed immediately. The Rules were framed only in the year 2010 after the advent of the Act of 2005 and before the framing of Rules in the year 2010, the inquiry was initiated and the appellant was dismissed from service. It is impermissible for the State to fall back Rule 21 of the Assam Non-Government College Management Rules, 2001 because the proviso to Section 6 of Assam College Employees (Provincialisation) Act, 2005 clearly stipulates that some of the powers of the appointing authority may, however, be delegated to the Governing Body of the college; therefore, unless the Rules are framed under the Act, in question, it was not permissible for the Governing Body to exercise the powers of appointing authority in any manner.

In that view of the matter, we hold that the Governing Body had no right to hold an inquiry into the matter and pass order of dismissal, later on sent it to the Director for approval.

Upon consideration, we find that Rule 27 of the Assam College Employees (Provincialisation) Rules, 2010 cannot be interpreted to mean that the Governing Body will have the power to hold an inquiry.

Rule 27 of the Assam College Employees (Provincialisation) Rules, 2010 reads as under:

"Residual power of Appointing Authority.- The Governing Body of the College shall exercise all other powers of the Appointing Authority as per usual norms."

It may be that the Governing Body of a college has been empowered to exercise all powers of the appointing authority as per usual norms; the said residual power cannot be interpreted to mean that the Governing Body can appoint a person under Section 6. The Governing Body can only recommend to the Director for appointment. The said Rule cannot be interpreted to mean that the Governing Body independently can appoint a person under Section 6. When the Governing Body does not enjoy power of appointment; it has no power of holding inquiry and the power of dismissal.

In that view of the matter, the Director, Higher Education is directed to hold denovo inquiry into the matter and pass appropriate orders in accordance with law within a period of six months.

The question of reinstatement of the appellant does not arise as he has attained the age of superannuation. It is unnecessary to mention that in the event the appellant succeeds, he will only be entitled to only monetary benefit.

The appeal is accordingly disposed of.