WP(C) 1585/2007 BEFORE THE HON’BLE MRS JUSTICE ANIMA HAZARIKA JUDGEMENT AND ORDER Heard Mr. KH Chodhury, learned Senior counsel assisted by Mr. SK Muktar, learned counsel appearing for the petitioner. Also heard Mr. S Deka, learned St anding Counsel, Education Department appearing for respondent Nos.1 and 2 and Mr . AD Choudhury, learned counsel appearing for respondent Nos.3 and 4. 2. The challenge made in this writ petition is to the action of the college authority/Governing Body, Guwahati College in adopting resolution No.1 in the j oint meeting dated 15.9.2006 (Annexure-Q-1), the last three lines of the resolut ions of the said joint meeting dated 15.9.2006 at the fifth page (numbered as pa ge 7) as shown in the photocopy of resolutions of the said joint meeting dated 1 5.9.2006 (annexure-Z-1) and/or condition No.(a) of letter dated 22.9.2006 (Annex ure-R) adopting Resolution No.2 dated 2.12.2006 (Annexure-T) and resolution No.8 dated 2.3.2006 (Annexure-Z) of the Governing Body, Guwahati college with a pray er for setting aside and quashing the same being illegal, null and void and thus , not sustainable under the law. 3. The necessary facts are narrated hereunder to adjudicate the contentions raised in this petition by the parties: The petitioner secured first class in both BA (Geography major) and MA ( Geography). Petitioner was working as part time Lecturer in the department of Ge ography, Guwahati College (’the college’ for short) since 21.7.2002. Thereafter, pursuant to an advertisement dated 28.5.2003 and selection dated 24.6.2003, the petitioner was appointed as Lecturer in the department of Geography, Guwahati c ollege against non-sanctioned post vide letter dated 31.7.2003. From 1.10.2005 to 9.10.2005 the students of department of Geogra phy, Guwahati College had gone for educational excursion to Jaipur in the State of Rajasthan under the charge of Professor Bimal Ch. Das and the petitioner. Aft er the excursion, a feed back meeting was held on 25.10.2005 in the department o f Geography, Guwahati College under the presidentship of the Head of the departm ent of Geography to discuss thoroughly about the said excursion. In the meeting, students of the department delivered their speech (experience) and everybody pr aised for smooth conduction of the excursion programme and nobody made any alleg ation against any body. Suddenly, on 10.11.2005, the petitioner received a show-cause notice iss ued by the Principal of the College containing four allegations allegedly report ed by the students and the petitioner was directed to show cause within 24 hours . The show cause notice is quoted hereunder: From: Dr. RN Das, M.Sc, Ph.D., Principal, Guwahati College, Ghy-21. To: Mr. Safiqur Rahman, Lecturer, Deptt. of Geography, Guwahati College, Ghy-21. Sub : Socause notice in context with the Students’ allegations. Dear Safiqur, With reference to the subject above that some of students of you r department (Geography) who participated in the last educational excursion to J aipur about the following happenings during the period of excursion. 1. On the day of your journey to Jaipur after boarding in the train Mr. Bimal Das one of the Prof-in-Charge of the trip became unconscious up to Ja ipur. During this period you did not take care of him as reported by the student s. 2. After arriving at Jaipur you took Bimal Das to Hospital without any 3rd company and the Medical Report along with accounts of the party from the hospital, was reported to be missing and so you could not show the report as re ported by the students. 3. It is also reported by students that you misbehaved some girls s tudents during the excursion period, which has demoralised the students. 4. Moreover, it also reported that you threatened some boys that yo u will give poor marks during the time of practical examination. The above reports are submitted by students to the Principal for enquiry and further action. Therefore, you are notified to submit the socause within 24 hour s from the date of notification. Failing which necessary disciplinary action wil l be taken against you. Yours faithfully, Sd- Principal, Guwahati College. On 11.11.2005, petitioner submitted his reply to the show cause denying all the allegations being false and fabricated. On 16.11.2005, eight students of the department of Geography submitted a letter to the Principal of the College inter alia stating that after one month of educational excursion, being misled due to instigation of some persons, they were compelled to make some imaginary allegations against the petitioner and for the said allegations, the situation in the college became tense. They also regr etted that due to their mistake they had hurt the heart of the petitioner by mak ing some imaginary allegations and in the process they were also seriously hurt for which they begged for apology from the Principal of the college that they wo uld not commit such act and promised to refrain from this type of deeds in futur e for the interest of the college. However, on the very next day, i.e. 17.11.2005, a notice dated 17.11.200 5 was issued to the petitioner asking him to go on compulsory leave with effect from 17.11.2005 as per the decision taken by the Governing Body (’GB’ for short) in its meeting held on 16.11.2005 on the allegations leveled against the petiti oner by some students of the college. By the said notice petitioner was also dir ected to stay out of the college campus and not to leave the station till comple tion of the enquiry by the enquiry committee constituted by the GB and also to c o-operate with the enquiry committee as and when necessary. Thereafter, an enquiry committee was constituted comprising of an Execut ive Magistrate and two Academicians. By letter dated 17.12.2005 issued by the Pr incipal of the college, the petitioner was directed to appear before the enquiry committee on 20.12.2005 at 4 pm. Accordingly, the petitioner appeared before th e enquiry committee as directed. The enquiry committee so constituted has submit ted its report before the college authority on 4.2.2006. When after waiting for several months, there was no progress of the matter, the petitioner vide letter dated 25.4.2006 requested the President, GB of the college to take action on the enquiry report. Thereafter, vide letter dated 28.4.2006 issued by the Principal of the College, petitioner was requested to attend the joint meeting between th e GB and some selected teachers of the college to be held on 6.5.2006 to settle the allegations brought against the petitioner. But the meeting dated 6.5.2006 h as been re-scheduled to be held on 9.5.2006 at 10 am. However, no joint meeting was held on 9.5.2006 also. For about four months after submission of the enquiry report when the co llege authority did not take any action on the enquiry report dated 4.2.2006, th e petitioner finding no other alternative filed a writ petition being WP(C) No.2 927/2006 before this Court which was moved on 14.6.2006. This Court vide order d ated 14.6.2006 disposed of the writ petition with a direction to the GB of the c ollege as well as the Principal thereof to take immediate steps by recording a d ecision on the issue within a period of four weeks from the date of receipt of c ertified copy of this order. The petitioner accordingly submitted certified copy of the order dated 14.6.2006 before the appropriate authority and on receipt of the said order, the Principal of the college on 10.7.2006 issued a letter to th e petitioner informing that report of the enquiry committee was turned down by t he GB in its meeting held on 2.3.2006 vide resolution No.8. Petitioner was surpr ised to know about the same as copy of the report was never served upon him. The refore, on 24.7.2006, petitioner submitted a letter to the Principal of the coll ege with reference to the letter dated 10.7.2006 inter alia stating therein that he came to know for the first time only from the letter dated 10.7.2006 that th e GB of the college had turned down the report of the enquiry committee. He was kept in total darkness about the same. Hence, the petitioner requested to furnis h him certified copy of the three documents including the report of the enquiry committee within a period of 15 days from the date of receipt of his letter. When the request made by the petitioner evoked no response, vide applica tion dated 28.8.2006 he once again requested the Principal of the college to con clude the proceedings drawn up against him and furnish the certified copy of the aforesaid documents. However, instead of furnishing the documents to the petitioner by letter dated 13.9.2006 issued by the Principal of the college petitioner was asked to attend the joint meeting to be held on 15.9.2006. Accordingly, the petitioner at tended the same wherein it was decided that the petitioner would be allowed to r esume his duties as Lecturer in the department of Geography of the college with effect from 25.9.2006. When the matter rested as thus, petitioner was surprised to receive a letter dated 22.9.2006 from the Principal asking him to resume his duties as Lecturer in the department of Geography on 25.9.2006 with the followin g conditions: a) You must submit along with your joining letter, a letter tenderi ng your unconditional apology, in the line of your confessions at the joint meet ing for the indecent behaviour towards a girl student during last years departme ntal excursion. b) You cannot claim salary from the college for the period during w hich you were at compulsory leave, c) Further, it will be on record that the authority will not be len ient on you in any incident of unexemplary by you in future. Petitioner on 25.9.2006 went to the office of the college to resume his duties but he was not allowed to resume duty as he did not tender unconditional apology. Confronting with the said position, the petitioner sent the joining let ter by registered post. He again went to join his duties on 26.9.2006 and 27.9.2 006 but this time also he was not allowed to join. The petitioner on 15.11.2006 moved this Court once again by filing a wri t petition being WP(C) No.5696/2006 praying inter alia for concluding the procee dings drawn up against him by the GB of the college. In the said writ petition, college authorities filed their affidavit-in-opposition annexing therewith a cop y of the GB’s resolution dated 15.9.2006. Subsequently, the i/c Principal of the college forwarded the copy of the resolution of the GB dated 2.12.2006 stating therein that GB has resolved to reject the joining letter dated 25.9.2006 of the petitioner for not fulfilling the conditions enumerated in the resolution No.1 of the joint meeting dated 15.9.2006 and also for the reason that the petitioner had not physically resumed his duties. After receipt of the communication the petitioner informed the i/c Princ ipal vide letter dated 12.12.2006 stating therein that on 25.9.2006, at 9 am, he personally went to the office of the i/c Principal of the college to resume hi s duties and submitted his joining letter without tendering unconditional apolog y and he was verbally not allowed to resume his duties. Therefore, finding no ot her alternative he sent the said joining letter to the i/c Principal of the coll ege by registered post. In the aforesaid letter he also prayed for concluding th e proceedings drawn up against him and also to furnish him the documents includi ng the enquiry report. However, nothing was done in that regard by the authority . Subsequently, the writ petition being WP(C) No.5696/2006 was withdrawn o n 19.2.2007 by the petitioner with the liberty to file afresh. Since the enquiry report was not furnished to the petitioner he had to o btain the same only on 19.3.2007 through the State Information Commission, Assam . In the enquiry report dated 4.2.2006 it has been recorded inter alia as thus: Sri Binoy Gogoi and ten others, who were signatories of the complaint p etition submitted to the Principal, Guwahati college regarding the allegation of negligence proper medical attention towards Pof. BC Das and indecent behaviour to one of the girl student by Prof. Rahman, later withdrew the same. The student s stated in a written petition that the allegation brought by them towards Prof. Rahman was fictitious and it was done under the influence of some persons. They are now highly repentent of their behaviour as it had spoiled the academic atmo sphere of the college. In view of the above, it was found that the allegation re garding misbehaviour of Prof. S. Rahman towards a girl student namely syeda Rous anara Yasmin could not be established. The student herself denied the facts in a written statement too. Although Prof. S. Rahman was not found guilty, it appear s that he tried to be more friendly with the girl students by palm reading etc. It is felt that he should be warned by the college authorities to behave properl y in future. As regards allegation of inadequate medical attention to Prof. BC d as by Prof. S Rahman, it could not be substantiated by any facts. On the contrar y as per the records submitted before the Enquiry committee, it was found out th at proper medical attention was rendered to Prof. BC Das. In regard to Prof. BC Das unconscious state for nearly two days, it was revealed that during that peri od Prof. Das performed all his daily routine works (like shaving, using the toil et, taking food etc.) normally and also as per his version he joined the others in other excursional activities. On conclusion of the enquiry proceedings, committee gave its finding whi ch is quoted hereinbelow: &..During the investigation, it came to light that some teachers were i ndirectly involved in instigating the students to level allegations against the teacher concerned. What we fail to understand is why the matters was discussed i n the teachers unit meeting instead of submitting the complaint to the Principal of the College. In our opinion, the matter could have been settled by the Princ ipal of the College. In this regard, the enquiry committee would like to recomme nd the governing body of the Guwahati College that some strict measures may be u ndertaken to stop such practice in future as it viciates the academic atmosphere of the Institution. It is also recommended that in future both male as well as female teachers should accompany the students during such excursion tours in ord er to avoid such unpleasant experiences. The GB by resolution No.8 dated 2.3.2006 inter alia resolved not to acc ept the enquiry report and to hold joint meeting between the GB and teachers rep resentatives for amicable settlement of the allegations brought against the peti tioner and the i/c Principal was directed to inform the petitioner and the Profe ssors and Head of the Department, Geography to be present in the meeting and to do the needful. After the joint meeting dated 15.9.2006 between the Members of the Guwah ati College Teacher’s Unit (’GCTU’ for short) as well as the GB members of the c ollege, 8 resolutions (resolution Nos.2 -9) were recorded in absence of the peti tioner. 3. Mr. Choudhury, learned Senior counsel appearing for the petitioner has s ubmitted that the photocopy of the proceedings and resolution of the joint meeti ng between GCTU members and GB members of the college held on 15.9.2006 were fur nished by the learned counsel appearing for respondent Nos.3 and 4, i.e. college authority containing 5 pages from page 3 to 7 to the counsel of the petitioner during the course of hearing of the case in this Court. The first page (numbered as page 3) of the said photocopy contains the signatures of the 19 persons incl uding the petitioner at Sl. No.13 showing 19 persons in the said meeting dated 1 5.9.2006. The said first page is written in English. But the other four pages of the said photocopy are written in Assamese. The second page (numbered as page 4 ) with the heading Joint meeting between the GCTU Members and GB Members of the College held on 15.9.2006 at 5-30 afternoon, then the subject of the meeting i s written as Meeting for settlement of the allegations levelled against Lecture r Safiqur Rahman , then the resolution starts. The first paragraph of the resolu tions is not numbered and second paragraph of the resolution is numbered as 2. T he third page (numbered as page 5) contains resolution Nos.3, 4 and 5. The fourt h page (numbered as page 6) contains resolution Nos.6, 7, 8 and four lines of re solution No.9. The fifth page (numbered as page 7) contains 9 lines in continuat ion of resolution No.9 and a separate unnumbered paragraph of three lines statin g that the petitioner will have to enclose an apology letter along with the join ing report. As pointed out hereinabove by Mr. Choudhury, the first page of the said photocopy (numbered as page 3) contains the signature of the 19 persons and/or m embers regarding their presence in the said meeting wherein it was decided/agree d upon that the petitioner would be allowed to resume his duties as Lecturer in the department of Geography, Guwahati College with effect from 25.9.2006. In the said meeting dated 15.9.2006, the petitioner never made any confession as alleg ed and it was never decided that the petitioner should submit any apology letter along with the joining letter. It is the specific case of the petitioner that i n presence of the petitioner no resolution was written in the said meeting as sh own/mentioned in page 4 to 7, photocopy of which have been supplied to the learn ed counsel for the petitioner by the counsel for respondent Nos.3 and 4 during t he hearing of the writ petition. 4. It has been brought to the notice of this Court by the learned counsel a ppearing for the petitioner that after resolutions were reduced to writing, no s ignature of the members present in the meeting were found justifying/approving t he said resolution. The petitioner is/was not aware about the said resolution da ted 15.9.2006, inasmuch as, the photocopies provided by the learned counsel appe aring for the college authority do not contain resolution No.1. Moreover, Assame se version of the said resolution dated 15.9.2006 do not tally with the translat ed copy of the resolution Nos.1 and 2 dated 15.9.2006 which have been annexed as Annexure-5 to the affidavit-in-opposition filed on behalf of respondent Nos.3 a nd 4 in WP(C) No.5696/2006 and the same is now annexed by the petitioner as Anne xure-Q-1 as such it can safely be concluded that the resolution No.1 along with three conditions put therein and the last three lines of the resolution of the s aid meeting dated 15.9.2006 on the fifth page (numbered as page 7) as shown in t he photocopy of the resolutions of the said meeting were afterthought which appe ars to be subsequently manufactured behind the back of the petitioner only to ob tain written apology from the petitioner for a thing which he has never done and never confessed in the said joint meeting dated 15.9.2006 as alleged. 5. Mr. Choudhury, learned Senior counsel referring to the letter dated 10.7 .2006 has submitted that the resolution No.8 has been quoted in the above letter as follows: & & &.After a threadbare discussion of the Enquiry Committee Report in c nnection with the allegation against Md. Safiqur Rahman, the GB unanimously res olved to turn down the enquiry report. Whereas in Annexure-3 of the affidavit-in-opposition filed on behalf of respondent Nos.3 and 4, the resolution No.8 is quoted as follows: & & &.After a threadbare discussion of the Enquiry Committee Report in c nnection with the allegation against Md. Safiqur Rahman, the GB unanimously res olved not to accept down the enquiry report. Thus from the above, it is evident that the college authority kept on ch anging the resolution whimsically at its sweet will. Referring the two aforesaid versions of resolution No.8, Mr. Choudhury, learned Senior counsel has submitte d that the said resolution allegedly adopted in the meeting was passed with a vi ew to victimize the petitioner by subjecting arbitrary action. 6. Mr. Chodhury, learned Senior counsel, therefore, has submitted that the petitioner has been deprived from resuming his duties even after a long period o f more than four years, i.e. since 17.11.2005 till date even when the disciplina ry proceedings drawn up against him did not survive. Learned Senior counsel has submitted that the action of the authority is, therefore, absolutely arbitrary, whimsical and without any authority of law. Thus, submitted Mr. Choudhury that i t is fit case wherein this Court would direct the college authority to allow the petitioner to resume his duties without any further delay. 7. Mr. AD Choudhury, learned counsel appearing for respondent Nos.3 and 4 h as submitted that a detailed affidavit-in-opposition has been field on behalf of respondent Nos.3 and 4 controverting the various allegations made by the petiti oner. In the said affidavit it has been contended that after conclusion of the d epartmental proceedings the petitioner has been allowed to resume duties in the college subject to fulfilling certain conditions. Such decision was taken in the joint meeting dated 15.9.2006 of the GB of the college and the members of the t eaching staff including the petitioner were also present. Therefore, no cause of action arises for the petitioner to file the instant writ petition and the same is liable to be dismissed on this ground alone. Learned counsel has further sub mitted that due to non fulfilling the conditions precedent as decided in the joi nt meeting, on 2.12.2006 it was decided to reject the joining letter of the peti tioner dated 25.9.2006 meaning thereby if the petitioner fulfills the conditions precedent as resolved vide resolution No.1 dated 15.9.2006, he would be allowed to join in the college. 8. In the affidavit-in-reply filed on behalf of the petitioner, petitioner has denied all the allegations made against him by the college authority. It is contended on behalf of the petitioner that there is no evidence to support the c onclusion of the college authority not to accept the enquiry report and reject t he joining letter of the petitioner. It is specifically denied on behalf of the petitioner that neither the petitioner was present nor he signed in the joint me eting while adopting the resolution No.1. 9. In spite of granting several adjournments the college authority failed t o produce the original record of the case. Therefore, there is no other alternat ive but to accept the submission made on behalf of the petitioner that the petit ioner was not present at the time of adopting resolution No.1 as alleged. 10. I have heard the learned counsel appearing for the parties. Also perused the pleadings set forth by the parties. It is the specific case of the petition er that no copy of the enquiry report has been furnished to the petitioner till date and the petitioner inspite of his repeated application and request before t he college authority could not obtain the copy of the enquiry report and ultimat ely he could obtain the same by approaching the State Information Commission, As sam. In the said enquiry report it has been mentioned that the charges leveled a gainst the petitioner could not be established. The GB being the appointing and disciplinary authority acted beyond its power in holding the joint meeting betwe en GCTU and the members of the GB which cannot be a substitute for proper discip linary proceeding under the provisions of law. Any decision of such joint meetin g cannot be enforced against the petitioner for committing any misconduct withou t the same