PHANIDHAR MEDHI Vs. STATE OF ASSAM

JUDGEMENT

(1.) This writ application has been filed by an employee of the Chief Judicial Magistrate, Morigaon challenging the order of dismissal dated 7.12.1998 passed by the respondent No. 3, Chief Judicial Magistrate, Morigaon, Assam dismissing the petitioner from service. The petitioner was dismissed from service by holding an enquiry. Earlier this writ petitioner approached this court by filing a writ petition being Writ petition (Civil) No. 299/99 and this writ petition came up for disposal before this court and on 8.2.99 this court dismissed the writ petition on the ground that there is alternative remedy available to the petitioner against the impugned order. Orders of the Chief Judicial Magistrate are appealable before the District & Sessions Judge, Morigaon and the petitioner should avail the alternative remedy. Accordingly an appeal was filed before the learned District & Sessions Judge, Morigaon under Rule 15 of the Assam Services (Discipline & Appeal) Rules, 1964. That appeal was dismissed by order dated 28.7.99.

(2.) The only point which has been argued by Mr. Bhattacharjee learned Advocate for the petitioner is that the order of dismissal passed by the Chief Judicial Magistrate is without jurisdiction being violative of Article 311 of the Constitution of India. The admitted position in this case is that the petitioner was appointed as Lower Division Assistant in Morigaon Sub Division by a letter of appointment dated 25.1.74 and he was posted in the office of the office of Sub Divisional Magistrate (Judicial) Morigaon. At that point of time there was no Rule with regard to the appointment of such person. The Rule which was followed is Assam Ministerial Establishment Service Rules, 1967. The appointing authority as defined under that Rule, 1967 save and except to certain posts as mentioned in that Rule was District Judge in the case of appointment of ministerial posts in the District Judge establishment. The District Judge is the head of the District judiciary and he used to exercise that power in terms of that Rule and accordingly the petitioner was also appointed by the District Judge.

(3.) Subsequent to it in the year 1987 a Rule was framed in exercise of power conferred by proviso to Rule 309 of the Constitution of India and that Rule is known as Assam District and Sessions Judges Establishment (Ministerial Service Rules), 1987 and that Rule came into force with effect from 26th October, 1987. In this Service Rules, it was provided that the Chief Judicial Magistrate shall be the appointing and Disciplinary authority for all the persons under his establishment. The petitioner herein after the establishment of the court of Chief Judicial Magistrate at Morigaon came under the jurisdiction of Chief Judicial Magistrate at Morigaon and it was he who passed the order of promotion of the petitioner from LDA to UDA and thereafter from UDA to Peskier and thereafter in exercise of the powers given under this rule, he initiated the disciplinary proceeding and passed the order of dismissal.