Fujail Ahmed vs The State Of Assam And 2 Ors
2022 Latest Caselaw 910 Gua

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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

15.03.2022

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 Page No.# 3/4

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 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. Mr. J.K. Goswami, learned counsel for the State respondents submits that after the petitioner was released from judicial custody on bail, the suspended petitioner neither reported at the Battalion Headquarters nor did he appear in the roll call parade every morning or evening. As attending a roll call parade every morning and evening is a daily routine of the Armed Forces and a part of drill and discipline, the petitioner was unauthorizedly absent from the Battalion Headquarters. As such, the suspended petitioner was not entitled to draw any Subsistence Allowance for not attending roll call duty every day.

7. The petitioner on the other hand, in his affidavit-in-reply, has denied the said submission and stated that the petitioner had reported to the authorities from time to time whenever he was called. Further, the petitioner attended the morning and evening Roll Call Parade held at Battalion Headquarters every day.

8. I have heard the learned counsels for the parties.

9. FR 53(1)(ii)(a) provides that a Government servant under suspension, shall be entitled to payment of Subsistence Allowance at an amount equal to Page No.# 4/4

the leave salary which the Government servant would have drawn if he had been on leave or on half average pay or on half pay and in addition dearness allowance based on such leave salary.

A bare perusal of the above provision clearly goes to show that the suspended Government servant would have to be given Subsistence Allowance during his suspension period.

10. In view of the above FR 53(1)(ii)(a), this Court is of the view that the petitioner cannot be denied payment of Subsistence Allowance for the period from 12.10.1999 to 30.11.2013. The respondents are accordingly directed to pay to the petitioner his Subsistence Allowance, for the suspension period from 12.10.1999 to 30.11.2013, within a period of 3 (three) months from the date of receipt of a certified copy of this order.

11. The writ petition is disposed of accordingly.

JUDGE

Comparing Assistant