Gauhati High Court
Fujail Ahmed vs The State Of Assam And 2 Ors on 3 March, 2022
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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
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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
