Gauhati High Court
Hav. Keshabananda Bhatta @ Hav. ... vs The State Of Assam And 4 Ors on 18 November, 2021
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GAHC010001452021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/289/2021
HAV. KESHABANANDA BHATTA @ HAV. KESHABANANDA
BHATTACHARJEE
S/O- LT. UMA KANTA BHATTACHARJEE, R/O- VILL- APETIARI, KALIABOR,
P.O. AND P.S. JAKHALABANDHA, DIST.- NAGAON, ASSAM, PIN- 782078
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, HOME (B)
DEPTT., DISPUR, ASSAM- 781006
2:THE DIRECTOR GENERAL OF CIVIL DEFENCE AND COMMANDANT
GENERAL AT HOME GUARDS
BELTOLA
GHY
ASSAM- 781028
3:THE DY. DIRECTOR GENERAL OF CIVIL DEFENCE AND COMMANDANT
GENERAL OF HOME GUARDS
BELTOLA
GHY
PIN- 781028
ASSAM
4:SENIOR STAFF OFFICER
OFFICE OF THE DIRECTOR OF CIVIL AND COMMANDANT GENERAL OF
HOME GUARDS
BELTOLA
GHY
PIN- 781028
ASSAM
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5:THE COMMANDANT
A.S.R.F. BN. I
BARAMA
NALBAR
Advocate for the Petitioner : MR K K MAHANTA
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
18.11.2021
Heard Mr. K.K. Mahanta, learned Senior Counsel for the petitioner. Also heard Mr. T.C.
Chutia, learned counsel appearing for the respondent nos.1 to 5.
2. The petitioner by way of this writ petition has prayed for quashing the order dated
29.11.1994, wherein the respondent no.3 has ordered that the entire period of absence from
duty w.e.f. 30.04.1991 should be treated as dies non and that the petitioner would not be
entitled to pay and allowances for the period of his absence from duty.
3. The case in brief is that the petitioner while working as a Havildar Clerk in the 1 st
A.S.R.F Battalion, Barama, took leave w.e.f. 14.04.1991. Thereafter the petitioner was
apparently on unauthorized absence w.e.f. 30.04.1991 till 22.11.1993. A departmental
proceeding was drawn against the petitioner and the Disciplinary Authority vide order dated
29.11.1994 held that the petitioner should be given a second chance and accordingly, though
the petitioner was reinstated in service with immediate effect, his entire period of absence
from duty w.e.f. 30.04.1991 was treated as dies non, disentitling him from payment of any
pay and allowances for the period of his absence from duty.
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4. The petitioner's counsel submits that the petitioner was initially appointed to the post
of Havildar Clerk in the Assam Special Reserve Police Force Battalion No.I on 29.11.1984.
However, due to the period of absence being treated as dies non by the respondents, the
petitioner has not been promoted in time, as has been done in the case of his juniors. He
submits that treating the period of absence as dies non cannot be said to be a punishment as
per the Conduct Rules and as such, the petitioner should have been promoted to the post of
Platoon Commander along with his juniors.
5. The petitioner's counsel submits that the petitioner was subsequently promoted to the
post of Platoon Commander in the year 2015, while his juniors were promoted in the year
2008. He submits that as the petitioner's period of absence was treated as dies non and as
the same cannot be said to be a punishment, the petitioner should be considered for his next
promotion as Assistant Commandant along with his erstwhile juniors, who were junior to him
in the grade of Havildar.
6. The petitioner's counsel also submits that he does not press the writ petition with
respect to setting aside and quashing the Inquiry Report dated 04.11.1994.
7. Mr. T.C. Chutia, learned counsel for the respondents, on the other hand submits that
treating the petitioner's period of absence as dies non will not be a bar, while considering the
petitioner for promotion to the next higher post of Assistant Commandant. He submits that as
the period of absence treated as "dies non" was not a bar while considering the petitioner for
promotion to the post of Platoon Commander, the petitioner would be considered for
promotion to the next higher post, as and when his turn arrives and he comes within the
consideration zone.
8. I have heard the counsels for the parties.
9. The departmental proceeding initiated against the petitioner ended with the issuance
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of the order dated 29.11.1994, by which the petitioner's period of absence from duty w.e.f.
30.04.1991 was treated as dies non. Though the petitioner's period of absence may or may
not have contributed to the petitioner's late promotion as Platoon Commander in the year
2015, keeping in mind that his juniors had been promoted in the year 2008, the fact that the
petitioner has been promoted to the post of Platoon Commander clearly shows that the said
period of absence, which was treated as dies non would not be a bar for future promotions of
the petitioner. However, the petitioners' further promotion would have to be considered in
terms of his seniority in the Grade of Platoon Commander and the Rules in force. It is also
noticed that as the petitioner's promotion order in the year 2015 has not been put to
challenge and as there is no challenge made to the promotion orders of his juniors, who were
promoted as Platoon Commander in the year 2008, the petitioner is apparently junior in the
grade of Platoon Commander against his erstwhile juniors, though he may have been senior
in the grade of Havildar. As such, the petitioner would have to be considered for promotion to
the next higher post/Grade as and when his turn comes, as per his seniority in the Grade of
Platoon Commander and in terms of the recruitment/service rules in force.
10. In view of the above reasons and also due to the fact that there has been considerable
delay and laches in approaching this Court, the prayer for setting aside and quashing the
order dated 29.11.1994 cannot be granted. However, for the purpose of pensionary benefits,
the entire service period of the petitioner should be counted minus the period of his
unauthorised absence, as this Court in the case of Smt. Vijay Laxmi & Ors. Vs. Union of India
& 3 Ors., WP(C) No. 3698 of 2009, has held vide it's judgment & Order dated 16.08.2013 that
"Dies non" is used to define a period which is neither counted as part of service nor
considered as break in service.
11. The writ petition is accordingly disposed of.
JUDGE
Comparing Assistant
