Nitul Chandra Das vs State Of Assam And 5 Ors.

Both the writ petitions are being disposed of by this common judgment and order. Heard Mr. P. K. Roychoudhury, learned counsel appearing for

the petitioner as well as Mr. B. N. Goswami, learned Advocate General Assam for the respondent Nos. 1 to 5. None appears for the respondent No.

6 despite filing affidavit-in-opposition.

The petitioner is presently serving as Extra Writer in the Office of the Senior Sub-Registrar, Kamrup (M), Guwahati. A show cause notice dated

22.07.2016 was issued to the petitioner by the respondent No. 3 with a direction to submit the written reply on his source of income, property details in

his name etc. Thereafter, the Inspector General of Registration, Assam/respondent No. 2 issued an order dated 22.07.2016 placing the petitioner

under suspension with immediate effect. Another show cause notice dated 19.08.2016 was served on the petitioner under rule 9 of the Assam

Services (Discipline and Appeal) Rules 1964 read with Article 311 of the Constitution as to why penalties under Rule 7 of the Rules of 1964 should

not be inflicted on the petitioner on the following charges :

â€On perusal of the report submitted by the Deputy Commissioner, Kamrup (Metro) it appears that you and Sri Bipul Ch. Das, S/o Late Phatik Ch.

Das have jointly purchased a plot of land measuring 3 Kathas in equal share, i.e., 1 Katha 10 Lesa each through Registered Sale Deed No. 3690 dated

25-04-2016 and 3695 dated 25-04-2016 covered by Dag No. 117, 129 (Old) 485, 486 (New) and Pata No. 1 (Old) 1 (New) under Revenue Village

Sahar Kharguli, Mouza Ullubari at a cost of Rs. 50,00,000/- (Rupees Fifty Lakhs) each and Stamp Duty amounting Rs. 2,50,000/- (Rupees Two Lakhs

fifty thousand) only each. You are to submit (i) Your source of income, (ii) Property details in your name, (iii) Salary statement since inception of

service and Form-16 for last 3 (Three) years and (iv) Photo copy of Bank Pass Book where salary is deposited.â€​

The petitioner responded to the show cause dated 19.08.2016 and thereafter, the respondent No. 2 by an order dated 08.12.2016 reinstated the

petitioner back into service by dropping the departmental proceeding inasmuch as it appeared to him that it would not serve any meaningful purpose to

continue with the departmental proceeding. By the same order dated 08.12.2016, the petitioner was transferred to the Office of the Senior Sub-

Registrar, Nagaon with immediate effect. In the same order, the respondent No. 2 also decided to request the Government in the Administrative

Department to entrust the matter to the Vigilance and Anti-Corruption Bureau for investigation and necessary action. The order dated 08.12.2016 is

challenged in the present writ petition insofar as the transfer of the petitioner to the Office of the Senior Sub-Registrar, Nagaon is concerned on the

ground that his transfer is punitive and passed with malafide considerations.

Mr. P. K. Roychoudhury, learned counsel for the petitioner submits that the petitioner had earlier purchased a plot of land measuring 1 Katha 10

Lesa at the cost of Rs. 50,00,000/- (Fifty Lakhs) through the Registered Sale Deed No. 5032 and Deed No. 3690 dated 25.04.2016 which was

covered by Dag No. 117, 129 (Old) / 458, 486 (New) of Patta No. 1 (Old) / 1 (New) under Revenue Village Sahar Kharguli, Mouza-Ulubari in

District of Kamrup (Metro), Assam by taking a loan under the Union Home Scheme from the Union Bank of India, Hathigaon Branch, Guwahati. The

said purchase of the plot of land came to the knowledge of the respondents, more particularly, the respondent No. 3 by way of a complaint and it was

for this purpose that the show cause notice was issued upon the petitioner in contemplation of a departmental proceeding. He also submits that the

said purchase of land had come to the notice of his superior Officers thereby he had fallen from grace from such authorities and which led to the

issuance of the order dated 08.12.2016 transferring him to the Office of the Senior Sub-Registrar, Nagaon.

Learned counsel appearing for the petitioner submits that in the order dated 08.12.2016 the respondent No. 2 had clearly come to the conclusion that

the nature of allegations are not directly related to the scope of departmental proceeding which was being held at that relevant point of time and infact

he had taken a decision to request the Government in the Administrative Department to entrust the matter to the Vigilance and Anti-Corruption

Bureau. Further, by the same order the departmental proceeding drawn against the petitioner was dropped and the petitioner was reinstated back into

service, however, by transferring him out to the Office of the Senior Sub-Registrar, Nagaon without any cogent reasons and tainted by malafide

intentions. He submits that the issuance of the petitioner’s transfer was on the initiative taken by the respondent Nos. 3/6 who had send the notice

to the Vigilance and Anti-Corruption Bureau, CM’s Special Vigilance Cell, Assam for inquiry upon the purchase of the said plot of land.

The transfer of the petitioner is not initiated in public service but the same has been done with malafide reasons inasmuch as the petitioner had fallen

from grace merely because as an Extra Writer, he was able to purchase a plot of land for a consideration of Rs. 50,00,000/- (Fifty Lakhs), which

infact was a loan taken from the Bank. Learned counsel appearing for the petitioner has also drawn the attention of this Court to the affidavit-in-

opposition filed by the respondent No. 6, more particularly, at paragraph 18 and submits that the statements in the said paragraph clearly indicate the

personal enmity of the respondent No. 6 against the petitioner inasmuch as, it is clearly stated that the petitioner’s activities are not found to be

satisfactory and the transfer of the petitioner has become essential. The transfer of the petitioner was issued by the respondent No. 2, however, a

reading of the affidavit filed by the respondent No. 6 would clearly indicate the fact that the respondent No. 2 was influenced by the respondent No. 6

to transfer out the petitioner to the Office of the Senior Sub-Registrar, Nagaon on personal motives and to harass the petitioner.

He also submits that after the issuance of the impugned order dated 08.12.2016 wherein the respondent No. 2 had taken a decision to refer the matter

to the Vigilance and Anti-Corruption Bureau, the petitioner had received a W.T. Message dated 06.03.2017 through the Officer in-charge Latasil

Police Station directing him to appear before the Inquiry Officer and therefore the petitioner had approached this Court by way of Anticipatory Bail

No. 505/2017 praying for pre arrest bail. This Court by order dated 17.03.2017 had issued an interim order protecting the petitioner from being

arrested and on the next returnable date i.e., 26.07.2017, on the submission of the learned Addl. Public Prosecutor Assam that no criminal case has

been registered till that date against the petitioner, the said Anticipatory Bail No. 505/2017 was closed. He, therefore, submits that the sequence of

events would clearly indicate that the transfer of the petitioner affected by the order dated 08.12.2016 was purely malafide in nature without any

public interest and therefore, the same should be set aside.

Mr. B. Goswami, learned Addl. AG Assam on the other hand submits that the order dated 08.12.2016 was issued in public interest wherein

departmental proceeding against the petitioner was dropped and thereafter he was transferred to the Office of the Senior Sub-Registrar, Nagaon. He

submits that it is within the prerogative of the respondents to transfer an officer to any place in the exigencies of service and therefore no interference

is required. He also submits that as the respondents had taken a decision to refer the matter to the Vigilance and Anti-Corruption Bureau such

allegations made against the petitioner would be inquired into by the Vigilance and Anti-Corruption Bureau instead of the departmental proceeding and

hence the departmental proceeding was dropped. He also submits that the transfer affected upon the petitioner was made taking into consideration the

decision to refer the matter to the Vigilance and Anti-Corruption Bureau and therefore, no interference is required and the writ petition be dismissed.

Learned Addl. AG Assam also submits that the petitioner was serving under the respondent No. 6 at the relevant point of time and the respondent No.

6 was the District Registrar.

I have considered the submissions forwarded by the learned counsel appearing for the parties.

This Court has considered the notice dated 09.08.2016 as well as the allegations made therein which has been already reproduced herein above.

The submission of the learned counsel for the parties that he had purchased the plot of land by taking loan from the Union Bank of India has also been

considered. It was on the basis of the show cause notice dated 19.08.2016 that the departmental proceeding was drawn up against the petitioner.

Thereafter, the respondent No. 2 on a consideration of the whole facts and circumstances of the case had taken a decision by the order dated

08.12.2016 to drop the departmental proceeding against the petitioner and instead took a decision to refer the matter to Vigilance and Anti-Corruption

Bureau. However, by the same breath the petitioner was transferred to the Office of the Senior Sub-Registrar, Nagaon.

The respondent No. 2 has filed affidavit-in-opposition. There is no whisper in the said affidavit indicating that the transfer of the petitioner has been

done in public interest. If the transfer of the petitioner had been made in public interest, the same should have been stated by the respondent No. 2

inasmuch as it was the respondent No. 2 who had issued the transfer of the petitioner through the order dated 08.12.2016.

The affidavit filed by the respondent No. 6 has also been considered by this Court. Paragraph 18 of the affidavit filed by the respondent No. 6 is

reproduced herein below :

“18. That with regard to statement made in paragraph 27 of the writ petition the deponent begs to state that the petitioner’s activities are not

found to be satisfactory and the transfer of the petitioner has become essential. It will not be out of place to mention that if no action is taken against

the petitioner for committing such activities then it will put a wrong message to other employees as well and it will be as similar as to encourage other

employees to indulge in such kind activities.â€​

A reading of paragraph 18 would clearly indicate that the respondent No. 6 has some ill motives against the petitioner and that the transfer of the

petitioner by the respondent No. 2 to the Office of the Senior Sub-Registrar, Nagaon was influenced by the respondent No. 6 who had no business to

interfere in the working system of the respondent No. 2. It is also to be noted that the affidavit of the respondent No. 6 was filed on 16.08.2017 which

was after the interim order passed by this Court on 20.12.2016. The attitude of the respondent No. 6 in trying to defy the order of this Court has been

taken into consideration. The malafide and vindictive intentions of the respondent No. 6, against the petitioner is clearly indicated by the affidavit filed.

A conjoint reading of the affidavit filed by the respondent No. 2 and 6 would clearly indicate that the transfer of the petitioner to the Office of the

Senior Sub-Registrar, Nagaon is not in public interest but is tainted by malafide intentions to punish the petitioner.

In the facts and circumstances of the case as discussed herein above, this Court is convinced that the transfer of the petitioner has not been done

in public interest and accordingly, the order dated 08.12.2016 is set aside and quashed insofar as it concerns the transfer of the petitioner to the Office

of the Senior Sub-Registrar, Nagaon.

The respondents shall now consider the case of the petitioner for promotion to the higher post of Lower Division Assistant if he comes within the

consideration zone within a period of 3 (three) months from the date of receipt of a copy of the order of this Court. Both the writ petitions are allowed,

however, with no order as to cost.