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GAHC010195442017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2366/2017
FUJAIL AHMED
R/CONSTABLE NO. 678, S/O- MD BELAL AHMED, R/O- VILL- BANUGRAM,
P.O- NILAMBAZAR, P.S- KARIMGANJ, DIST- KARIMGANJ, ASSAM
VERSUS
THE STATE OF ASSAM and 2 ORS.
THROUGH THE SECRETARY TO THE GOVT OF ASSAM, DEPARTMENT OF
HOME AND POLITICAL AFFAIRS, DISPUR, GUWAHATI- 781006
2:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI-781007
3:THE COMMANDANT
5TH A P BATALLION
SONTILLA
P.O- SONTILLA
DIST- DIMA HASAO
ASSAM
PIN- 78881
Advocate for the Petitioner : MS.S HAZARIKA
Advocate for the Respondent : GA, ASSAM
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BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
03.03.2022
1. Heard Mr. A.K. Hussain, learned counsel for the petitioner and Mr. J.K. Goswami, learned counsel for the State respondents.
2. The petitioner who is a Constable in the 5 th A.P. Battalion was arrested on 12.10.1999 on the charge of producing fake documents and a criminal case was registered against him vide Haflong P.S. Case No.79/1999 under Section 420/468 IPC dated 12.10.1999. The petitioner was thereafter suspended from service vide order dated 12.10.1999 issued by the Commandant of the 5th A.P. Battalion. A departmental proceeding was also initiated against the petitioner.
3. The petitioner was acquitted by the Court of the Magistrate 1 st Class, NC Hills, Haflong vide judgment dated 07.07.2004 passed in G.R. Case No.174/1999 arising out of Haflong P.S. Case No.79/1999.
4. Subsequent to the above acquittal of the petitioner, the Commandant of the 5th A.P. Battalion issued order dated 30.11.2013, which states that the Departmental Proceeding No.13/1999 that had been initiated against the petitioner was dropped with immediate effect. The order dated 30.11.2013 also stated that the petitioner's period of unauthorized absence from duty w.e.f. 12.10.1999 to 30.11.2013 shall be treated as "dies non" and the petitioner would be allowed to draw his pay and allowances w.e.f. 01.12.2013 in the scale of pay of Rs.5200/- to 20200/- + Grade Pay Rs.2200/- The petitioner would also be governed by the old Government Pension Scheme as he was appointed on 24.05.1999.
5. The petitioner was reinstated into the service on 30.11.2013 and his Page No.# 3/3 prayer in the writ petition is for release of his Subsistence Allowance for the suspension period from 12.10.1999 to 30.11.2013.
6. A perusal of the affidavit submitted by the parties does not indicate that the respondent authorities had initiated any departmental proceeding against the petitioner with regard to his alleged unauthorized absence from 12.10.1999 to 30.11.2013. It is settled law that the respondent authorities have two options to undertake in respect of unauthorized absence, i.e., they could either regularize the period of the alleged unauthorized absence or initiate a departmental proceeding in respect of the said period against the petitioner. Otherwise, in terms of FR 53 which is applicable to the employees of the Government of Assam, the petitioner should have been paid his Subsistence Allowance for the period during his suspension period.
7. At this stage, Mr. J.K. Goswami submits that he would like to obtain instructions as to whether the respondent authorities had initiated any departmental proceeding against the petitioner with regard to his alleged unauthorized absence between 12.10.1999 and 30.11.2013.
8. List the matter on 15.03.2022.
JUDGE Comparing Assistant