REBATI MOHAN HAZARIKA Vs. STATE OF ASSAM

JUDGEMENT

(1.) The interesting question of law which confronts this Court for consideration in this writ petition is whether, on the facts and circumstances of this case, the petitioner, the Additional Director of Sericulture, Government of Assam, whose service has been placed under the administrative control of the Autonomous Council, Karbi Anglong ("KAAC" for short) and who has been placed under suspension and is subjected to disciplinary action by the Government of Assam, can be said to be transferred to KAAC on deputation, and subjected to a disciplinary proceeding, by the Government of Assam. The case of the petitioner is that as he is transferred on deputation to the KAAC, he cannot neither be placed under suspension nor can be subjected to the disciplinary control by the State Government as long as his deputation subsists. The undisputed facts, which are material disposal of this writ petition, may be noticed at the outset. By the notification dated 6.2.2003 issued by the Governor of Assam, the petitioner, who was Joint Director of Sericulture, Guwahati, was temporarily promoted to the newly up-graded post of Additional Director, Sericulture under Regulation 4(d) of APSC's (L/F) Regulation, 1951 and was placed under the administrative control of the KAAC for posting as Additional Director, Sericulture, Haflong. While working there, the Commissioner/Secretary to the Government of Assam, Handloom, Textile & Sericulture Department (respondent 2) issued the letter dated 9.12.2005 requiring the petitioner to show cause as to why penalties prescribed in Rule 7 of the Assam Service (Disciplinary and Appeals) Rules, 1964 should not be inflicted upon him for appointing 4 persons against the post of Sericulture Demonstrator in KAAC from a select list dated 17.12.2003 without the approval of the State Government/Director of Sericulture, Assam thereby violating the norms laid down by the Finance Department, Government of Assam and for by-passing the State Level Empowered Committee in violation of the Standing Government instructions and for filing false affidavit in the High Court.

(2.) In response to the said show cause, the Principal Secretary of KAAC by his letter dated 29.12.2005 addressed to the respondent No. 2 clarified that KAAC alone, as the borrowing authority, had the power to initiate disciplinary action against the petitioner and that necessary action should be taken by the KAAC as the borrowing authority against any officers/staff placed under their administrative control as and when arose with intimation to the State Government as lending authority. This letter was replied by the respondent No. 2 in his letter dated 7.6.2005 by making it clear that (i) Sericulture was not entrusted to the KAAC; (ii) the services of the petitioner were not placed at the disposal of the KAAC to exercise disciplinary jurisdiction and (iii) the lending department never ceased to be the disciplinary authority of the petitioner. It may be noticed that on the instruction of the KAAC, the petitioner refused to submit his show cause. This prompted the respondent No. 2 to issue the order dated 26.7.2006 placing the petitioner under suspension. By the order dated 8.9.2006, the respondent No. 2 appointed an enquiry officer and a presenting officer and directed the enquiry officer to submit his report within 16.10.2006. The subsequent letters of the KAAC to the respondent No. 2 to review/revoke the suspension order of the petitioner did not evoke any positive response. Ultimately, the petitioner is constrained to file this writ petition seeking the intervention of this Court to annul both the suspension order and the disciplinary proceeding against him.

(3.) The writ petition is opposed by the State-respondents by filing their affidavit-in-opposition through the respondent No. 2. A number of contentions have been raised by the answering respondents, but the same need not be referred to in view of the fact that I propose to first decide on the question as to whether the placing of the services of the petitioner by the State-respondents under the administrative control of KAAC will amount to transfer on deputation. Suffice it to refer to the averments of the answering respondent made in this behalf at paragraph 8 of the affidavit, which reads thus: