RINA DEKA & Ors. v. THE STATE OF ASSAM & Ors.

Advocate for the Petitioner : MR. K K PARASAR Advocate for the Respondent : SC, HIGHER EDU BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK 28/11/2022 Heard Mr. B Chanda, learned counsel for the petitioners. Also heard Mr. S Bhuyan, learned Standing counsel, Higher Education Department for the respondent Nos. 1 & 2 and Mr. B Bora, learned counsel for the respondent Nos. 3 & 5.

2. During the pendency of this writ petition, the respondent No. 4 has already retired from service on attaining the age of superannuation at 60 years.

3. Petitioners were the President and the Secretary of the Teachers’ Unit of Pub Kamrup College, Baihata Chariali, District-Kamrup.

4. On 28.12.2020 & 30.12.2020 in spite of request being made not to take part in an agitation pertaining to a decision of the State Government in the Higher Education Department, as they did not keep the said request and participated in the agitation on those two days’ and did not attending in their duties, considering their such actions, being the President and the Secretary of the Teachers’ Unit of said college, the Principal of Pub Kamrup College vide a letter under reference No. PKC/A- TU/012/2020/003 dated 30.12.2020 deducted two days’ salary from their monthly salaries for the Page No.# 3/5 month of December, 2020 directing them not to repeat such kind of agitation in future.

5. Being aggrieved with such action of the Principal of said Pub Kamrup College, District- Kamrup, petitioners have preferred this writ petition on 06.01.2021.

6. On being enquired, Mr. S Bhuyan, learned Standing counsel, Higher Education Department on instructions submitted that said Pub Kamrup College, Baihata Chariali, Kamrup was provincialised on

31.12.2005 under the provisions of the Assam College Employees (Provincialisation) Act, 2005 w.e.f.

01.12.2005.

7. Section 3(a)(b) of said 2005 Act reads as follows:- “(a) All rules including the rules of conduct and discipline which are applicable to the Government servants of corresponding grade similarly situated shall be applicable to the extent of their applicability is not contradictory to the provisions of this Act and the rules made thereunder. (b) The existing employees will continue to receive their respective existing scales of pay and other allowances etc. as admissible to them under relevant rules and orders of the Government.”

8. Section 5 of said 2005 Act relates to Government to take over the services of employees, which reads as under:- “The services of all the employees, who do not exercise the option within the stipulated period under Section 3(d) shall vest with the Government with effect from the respective date of provincialisation of the colleges.”

9. Section 6 of said 2005 Act relates to selection and appointment of employees and it specifies 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 accordance with the Rules and Procedure of the Government in force.

10. Section 12 of said 2005 Act empowers the Government to frame Rules.

11. The State Government in the Higher Education in exercise of the power conferred under Page No.# 4/5 Section 12 (1) of the said 2005 Act framed the Assam College Employees (Provincialisation) Rules, 2010 that came into force w.e.f. 22.11.2010 on the date of its publication in the Assam Gazette Extra- Ordinary.

12. Rule 15 of said 2010 Rules relates to Discipline & Appeal and it stipulates that all employees of the Assam Provincialised Colleges shall be governed under the provisions of “Assam Services (Discipline & Appeal) Rules, 1964, Assam Civil Services Conduct Rules, 1965 and guidelines made thereunder.

13. The deduction of two days’ salary from the monthly salary of the petitioners is apparently punitive in nature and has civil consequence.

14. From the impugned order dated 30.12.2020 issued by the Principal of said Pub Kamrup College, it is seen that as the petitioners participated in the agitation on 28.12.2020 and 30.12.2020, therefore, the Principal of said college by its order dated 30.12.2020 deducted two days’ salary from their monthly salaries which clearly reflects that the petitioners were not given any opportunity of hearing/show-cause before issuing the impugned order dated 30.12.2020.

15. Law is well settled that Government employees/public employees serving in a public post shall not impose with penalties without issuing them any show-cause notice and only after framing definite charge on the basis of the allegations and after making necessary enquiry, punishment can be imposed on such employees.

16. In the case in hand, the Principal of said Pub Kamrup College without issuing any show-cause notice to the petitioner, without framing any definite charge and giving them any opportunity of hearing deducted two days’ salary from their monthly salary for their alleged participation in the agitation on 28.12.2020 and 30.12.2020 as they were the President and the Secretary of Teachers’ Unit of said Pub Kamrup college.

17. For the reasons above, the impugned order under Reference : PKC/A-TU/012/2020/003 dated

30.12.2020 issued by the Principal of said Pub Kamrup College, Baihata Chariali, Kamrup being illegal and in violation of the principles of natural justice is hereby set aside and quashed.

18. The two days’ salary already deducted from the salaries of the petitioners shall be returned forthwith submitting the same in their bank accounts within a period of 2 (two) months from the date of receipt of a certified copy of this order to be submitted by the petitioners before the Principal of Pub Kamrup College, Baihata Chariali, Kamrup.

19. Any such consequential order taken by the Governing Body of said Pub Kamrup College and deduction of two days’ salary pursuant to the impugned order dated 30.12.2020 shall also be set aside and quashed. Page No.# 5/5

20. The service books of the petitioners shall be corrected accordingly.

21. To the extent above, this writ petition stands allowed. JUDGE Comparing Assistant