WP(C) 793/2004 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI JUDGMENT AND ORDER (ORAL) Heard Sri NNB Choudhury, learned counsel for the petitioner and Sri G.Soren, learned Government Advocate, Assam. 2. An order dated 2.6.2003 passed by the Chief Electoral Officer and Commis sioner and Secretary to the Government of Assam, Election Department, Assam disc harging the petitioner from service has been assailed in the present writ petiti on. 3. The facts, in brief, may be noticed at the outset: By an order dated 20.11.1996 the petitioner was appointed as a c asual Driver in the Office of the Chief Electoral Officer, Government of Assam, at a consolidated pay. The said appointment was for the period from 5.12.1995 up to 29.2.1996. Thereafter, the service of the petitioner was extended from time t o time by a series of extension orders until he was regularly appointed on 21.6. 1999 against a sanctioned post. The aforesaid regular appointment was pursuant t o an advertisement dated 19.11.1997 and a selection held in the year 1998. It is the case of the petitioner that he joined pursuant to the said appointment orde r on the same date, i.e., on 21.6.1999. By an order dated 22.12.2000 the petitioner was placed under sus pension with effect from 17.12.2000 on the ground that the petitioner was involv ed in a Criminal Case in connection with which he was remanded to custody till 1.1.2001. While the petitioner was under suspension, he received a show cause no tice dated 15.10.2001 drawing up a departmental proceeding against him and requi ring him to show cause as to why he should not be punished. A reading of the sho w cause notice dated 15.10.2001, along with the statement of allegations and the list of documents appended thereto, shows that the charge against the petition er was that he was arrested in connection with a Criminal Case involving the kid napping of a girl, namely, Smt. Urmila Das and having illicit relationship with the girl resulting in her pregnancy. On the said facts, the petitioner was charg ed of being engaged in an illegal and immoral act, showing disregard to the auth ority of law and further of having failed to carry out his duties with sincerity and devotion. 4. On receipt of the aforesaid show cause notice, the petitioner submitted his reply on 29.10.2001. In the reply, while admitting his arrest and remand to judicial custody till 1.1.2001 in connection with the Criminal Case in question, the petitioner had taken the stand that Smti. Urmila Das and the petitioner wer e having a love affair from before for which reason they had eloped on 16.12.200 0, whereafter the petitioner was arrested by the police. In the reply filed, the petitioner had further stated that after he was released from jail custody, he and Smti. Urmila Das had got married under the Special Marriage Act and that suc h marriage was with the consent of the girl’s parents. The petitioner had enclos ed with his reply a photocopy of the marriage certificate issued by the competen t authority. In these circumstances, the petitioner prayed before the concerned authority for dropping the departmental proceeding against him. 5. In the Criminal Case instituted against the petitioner, after due invest igation, the police submitted the final report exonerating the petitioner from t he charges leveled. By an order dated 1.2.2002 passed by the learned Chief Judic ial Magistrate, Kamrup, Guwahati the final report submitted was accepted, and th e petitioner, who was an accused in the said case, i.e., GR Case No.4750/2000 wa s discharged from all liabilities. 6. Thereafter, nothing appears to have been done for a considerable period of time. The petitioner continued to remain in a sate of animated suspension. Fi nally, on 2.6.2003 the Chief Electoral Officer, Assam passed an order in the dep artmental proceeding by taking the view that as the petitioner, in his reply dat ed 29.10.2001, had admitted the charges leveled against him and that as the peti tioner was on probation, he is being discharged from service on the ground that the petitioner’s continuance in service would embarrass the Government and set a bad precedent. Aggrieved, this writ petition has been filed. 7. No affidavit has been filed by the Respondents notwithstanding the f act that the case has remained pending for nearly 3(three) years. In the absence of such an affidavit the statements made by the writ petitioner, having remaine d uncontroverted, must be accepted as correct. In any case, the relevant facts necessary for an adjudication of the validity of the impugned discharge order be ing discernible from the official record, copies of which had been placed befor e the Court along with the writ petition, the Court finds no impediment in dispo sing of the writ petition on the basis of the materials available on record. 8. The charges brought against the petitioner have already been noted. H e has been charged with the offence of kidnapping and having an illicit relatio nship with an unmarried girl resulting in her pregnancy. This has been considere d to be an act of moral turpitude rendering the petitioner unfit to be retained in Government Service. In the reply dated 29.10.2001 the petitioner had stated that there was a previou s love affair between him and Smti. Urmila Das and that on 16.12.2000 both of th em had eloped, whereafter he was arrested by the police. The petitioner, in his reply, had further stated that on being released from custody, he and Smti. Urmi la Das had married with the consent of the parents of the girl and in this regar d the petitioner had enclosed a copy of the marriage certificate to the reply f iled by him before the competent authority. The Criminal Case against the peti tioner had ended in a final report exonerating the petitioner from the charges l evelled. In such a situation, on the very face of it, the decision of the Chief Electoral Officer to discharge/terminate the petitioner from service on the very same ground cannot be held to be legally warranted or justified. In the order dated 2.6.2003 the Disciplinary Authority of the petitioner has rec orded that the petitioner had admitted the charges leveled against him. This is plainly incorrect, inasmuch as, the petitioner in his reply dated 29.10.2001 had categorically denied the charges leveled against him and had mentioned the fact s and events that had occurred including the previous love affair between the tw o and the ultimate marriage, as proved by the marriage certificate issued by the competent authority. In such circumstances, no reasonable person, in the consid ered view of the Court, could have come to the conclusion that the petitioner sh ould be held guilty of the charges leveled against him in the show cause notice dated 15.10.2001. The Court is also of the view that the findings recorded by th e Disciplinary Authority that the acts of the petitioner and his continuance in service would embarrass the Government and set a bad precedent are equally unsus tainable being unreasonable and unwarranted. If the petitioner had a love affair and had eloped with the girl of his choice and thereafter had married her, whic h is what had happened in the present case, it is difficult to see how the Gover nment would be embarrassed and a bad precedent would be set by the said acts so as to justify the petitioner’s termination from service. In the above facts, th e conclusion is obvious. Viewed rationally and reasonably, the order dated 2.6.2 003 of the Chief Electoral Officer, Assam, has to be held by the Court as an arb itrary and unreasonable order besides being disproportionate. Such an order, sur ely, must not be allowed to remain on record. 9. For the aforesaid reasons, I allow the writ petition, set aside the orde r dated 2.6.2003 passed by the Chief Electoral Officer, Assam and direct the rei nstatement of the petitioner in service with back wages and all other consequent ial service benefits to which he would be entitled in law. The Respondent author ity will comply with the present directions forthwith and in any case within an outer limit of 30 days from the date of receipt of a copy of this order or a cer tified copy thereof.