Gauhati High Court
Phulendra Kalita vs The State Of Assam And 3 Ors on 22 July, 2022
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GAHC010103032022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3755/2022
PHULENDRA KALITA
S/O LATE KASHINATH KALITA, INSPECTOR OF SCHOOL, BARPETA (LAST
PLACE OF POSTING), R/O VILL- JYOTINAGAR, P.S. AND P.O.-PATSHALA,
DIST- BARPETA, ASSAM, PIN-781325
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM,
DEPARTMENT OF SECONDARY EDUCATION, BLOCK-C, ASSAM CIVIL
SECRETARIAT, JANATA BHAWAN, DISPUR, GUWAHATI, ASSAM, PIN-781006
2:THE ADDITIONAL SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF SECONDARY EDUCATION
BLOCK-C
ASSAM CIVIL SECRETARIAT
JANATA BHAWAN
DISPUR
GUWAHATI
ASSAM
PIN-781006
3:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI
ASSAM
PIN-781019
4:THE INSPECTOR OF SCHOOLS
BARPETA DISTRICT CIRCLE
BARPETA
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ASSA
Advocate for the Petitioner : MR. A K DUTTA
Advocate for the Respondent : SC, SEC. EDU.
BEFORE
HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR
ORDER
Date : 22-07-2022
Heard Mr. B.D. Das, learned senior counsel assisted by Ms. R. Deka, learned
counsel for the petitioner. Also heard Mr. R. Mazumder, learned standing counsel,
Secondary Education Department, Assam.
2. Consequent to lodging an FIR on 25.07.2016 in connection with ACB P.S. Case
No.07/2016 against the petitioner who was serving as Inspector of Schools, the
petitioner was taken into custody and was granted bail under Section 439 Cr.P.C. The
petitioner was thereafter placed under suspension by order dated 30.07.2016 under
Rule 6(1) of the Assam (Discipline & Appeal) Rules, 1964. The order of suspension
was revoked by Notification dated 11.02.2019 and the petitioner was reinstated back
in service pending disposal of the disciplinary proceeding initiated against him. The
proceedings of ACB P.S. Case No.07/2016 which was registered as Special Case
No.15/2017 in the Court of the learned Special Judge, Guwahati was disposed of by
the judgment and order dated 28.12.2020, whereby the petitioner was convicted and
sentenced for imprisonment for 4 years. Thereafter, the petitioner was taken into
custody on 28.12.2020 and was subsequently released on bail by an order of this
Court on 04.06.2021. The petitioner approached this Court by way of a writ petition
being WP(C) 5858/2021 for reinstating him back into service. The said writ petition
was disposed of on 10.11.2021 with the following observation:-
"From such point of view, we cannot find any infirmity on the part of the
respondents in not allowing the petitioner to resume his service. In the circumstance,
the remedy available for the petitioner would be to invoke the proviso to Rule 6(2) of
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the Rules of 1964. In the meantime, as the petitioner had been released from
custody, the remedy available would be to invoke the proviso to Rule 6(2) of the Rules
of 1964 and require the appointing authority to take a decision as to whether the
detention of the petitioner is on account of any charge not connected with his position
as a Government servant or
continuance in office is not likely to embarrass the Government or the Government
Servant, or the charge does not involve moral turpitude and accordingly to take a
decision as to whether the order of deemed suspension requires to be vacated.
8. It is stated that at present the Principal Secretary to the Government of Assam in
the Secondary Education Department would be the appointing authority of the
petitioner. Accordingly, the Principal Secretary to the Government of Assam in the
Secondary Education Department is directed to verify the records, take a decision as
required under the proviso to Rule 6(2) of the Rules of 1964 as to whether the
subsequent deemed suspension of the petitioner requires to be vacated in the facts
and circumstances of the case.
9. The requirement of passing the reasoned order be done within a period of fifteen
days from the date of receipt of a certified copy of this order.
The writ petition is disposed of in the above terms ."
3. Pursuant to the order dated 10.11.2021 passed in WP(C) 5858/2021, the
Secretary to the Government of Assam, Secondary Education Department passed an
order dated 13th May, 2022 and the relevant portion reads as under:-
"Considering the fact that the Sri Phulendra Kalita has been convicted hence he
cannot be allowed to resume his service and the suspension order cannot be revoked.
Instead, consequent to his conviction for criminal offence US 7 & 13(2) of Prevention
and Corruption Act and sentenced to imprisonment for four years by the Hon'ble
Special Judge Assam in Special Case No.15/2017 and said conviction being not
suspended or set aside till date, the delinquent Officer is liable for dismissal from
service in terms of Rule 10(1) of the Rule 1964 read with Act 311 2(a) of the
Constitution of India."
4. By the present writ petition, the petitioner is praying for subsistence allowance
from the period 28.12.2020 owards.
5. Mr. R. Mazumder, learned standing counsel, Secondary Education Department
on instruction submits that the department has already processed for paying the
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subsistence allowance to the petitioner w.e.f. 28.12.2020 and the same would be paid
to the petitioner within a short period of time.
6. Considering the submission made by the learned standing counsel, Secondary
Education Department, this petition is disposed of directing the respondents to pay the
subsistence allowance to the petitioner w.e.f. 28.12.2020 within a period of one month
from the date of receipt of the certified copy of the order of this Court.
7. With the above observation and direction, this petition stands disposed of.
JUDGE
Comparing Assistant
