Page No.# 1/7 vs The State Of Assam And 9 Ors
2022 Latest Caselaw 1692 Gua

                                                                Page No.# 1/7

GAHC010254962018




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : WP(C)/7869/2018

         THE DHUBRI LAW COLLEGE AND 2 ORS.
         REP. BY THE PRESIDENT OF THE GOVERNING BODY OF THE COLLEGE,
         P.O. BIDYAPARA, P.S. DHUBRI, DIST. DHUBRI, ASSAM-783324.

         2: THE PRINCIPAL
          DHUBRI LAW COLLEGE CUM SECRETARY TO THE GOVERNING BODY OF
         THE DHUBRI LAW COLLEGE
         WARD NO.15
          COLLEGE NAGAR
          P.O. BIDYAPARA
          P.S. DHUBRI
          DIST. DHUBRI
         ASSAM-783324.

         3: NRIPENDRA NATH DAS
          PRESIDENT OF THE GOVERNING BODY OF THE DHUBRI LAW COLLEGE
         WARD NO. 15
          COLLEGE NAGAR
          P.O. BIDYAPARA
          P.S. DHUBRI
          DIST. DHUBRI
         ASSAM-783324

         VERSUS

         THE STATE OF ASSAM AND 9 ORS.
         REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM,
         EDUCATION (HIGHER) DEPTT., DISPUR, GUWAHATI-781006.

         2:THE DIRECTOR OF HIGHER EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI-781019.
                                                      Page No.# 2/7

3:ABDUL KUDDUS
 S/O. MD. ROZAB ALI
VILL. SHIAL TARI
 P.O. AND P.S. MANKACHAR
 DIST. SOUTH SALMARA MANKACHAR
ASSAM SERVING AS PART TIME ASSTT. FROFESSOR OF LAW (UNDER
SUSPENSION)
 DHUBRI LAW COLLEGE
 DIST. DHUBRI
ASSAM.

4:RITURAJ RAJKHOWA
 EX-PRINCIPAL
 DHUBRI LAW COLLEGE
AND PRESENTLY ASSTT. PROFESSOR OF LAW
 BONGAIGAON LAW COLLEGE
 P.O. AND P.S. AND DIST. BONGAIGAON
ASSAM-783380.

5:DIPANKAR SARKAR
 PRESENTLY SERVING AS THE VICE-PRINCIPAL
 DHUBRI LAW COLLEGE
AND FORMERLY ACADEMIC AND ADMINISTRATIVE HEAD
 (JOINT SECRETARY
 FINANCE AND CONVENOR OF SUB-COMMITTEE OF DISCIPLINARY
PROCEEDING)
 P.O. BIDYAPARA
 P.S. AND DIST. DHUBRI
ASSAM-783324.

6:THE REGISTRAR
 GAUHATI UNIVERSITY
 GAUHATI UNIVERSITY CAMPUS
 JALUKBARI
 GUWAHATI-781014
ASSAM.

7:THE DIRECTOR
 UNIVERSITY GRANTS COMMISSION
 HOUSEFED COMPLEX
 LAST GATE
 BELTOLA
 GUWAHATI-06.

8:NAGENDRA NATH ROY
 RETD. HEAD OF DEPTT. OF POLITICAL SCIENCE
 B.N. COLLEGE
 DHUBRI
                                                                          Page No.# 3/7

             AND MEMBER OF GOVERNING BODY OF THE DHUBRI LAW COLLEGE
             WARD NO.15
             COLLEGE NAGAR
             P.O. BIDYAPARA
             P.S. DHUBRI
             DIST. DHUBRI
             ASSAM-783324.

            9:SAGIR AHMED
             (RETD. HEAD OF DEPTT. OF BOTANY
             B.N. COLLEGE
             DHUBRI AND MEMBER OF GOVERNING BODY OF THE DHUBRI LAW
            COLLEGE
            WARD NO. 15
             COLLEGE NAGAR
             P.O. BIDYAPARA
             P.S. DHUBRI
             DIST. DHUBRI
            ASSAM-783324.

            10:DR. PROTIMA NEOGI
             (RETD. HEAD OF DEPTT. OF HISTORY
             CHILARAY COLLEGE
             GOLOKGANJ
            AND MEMBER OF GOVERNING BODY OF THE DHUBRI LAW COLLEGE
            WARD NO. 15
             COLLEGE NAGAR
             P.O. BIDYAPARA
             P.S. DHUBRI
             DIST. DHUBRI
            ASSAM-783324

Advocate for the Petitioner   : MR. M K CHOUDHURY

Advocate for the Respondent : MR. K GOGOI (SC, HIGHER EDUCATION DEPT.)

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 19-05-2022

JUDGMENT & ORDER (ORAL)

Heard Mr. MK Choudhury, learned senior counsel for the petitioners, Mr. S Bhuyan, learned counsel for the respondents No. 1 and 2 being the authorities Page No.# 4/7

in the Higher Education Department of the Government of Assam and Mr. UK Nair, learned senior counsel for the respondent No. 3 Sri Abdul Kuddus. Considering the nature of the grievance raised, we do not find the necessity of the respondents No. 4, 5, 6, 7, 8, 9 and 10 to be the respondents in this writ petition. Accordingly, the said respondents stand deleted although Mr. PJ Phukan, learned counsel appears for the respondents in the Gauhati University and Mr. D Das, learned counsel for the respondent No. 7 being the authorities under the UGC are present, inasmuch as, the said respondents were arrayed as respondents in this writ petition.

2. Without going into the details of the facts leading to this writ petition, we take note of that the respondent No. 3 Sri Abdul Kuddus had filed an application before the learned Educational Tribunal, Dhubri, which was numbered as 89/2018 inter-alia claiming for a direction to the petitioner authorities under the Dhubri Law College for payment of subsistence allowances as well as the arrear subsistence allowances w.e.f. 14.06.2015. According to the respondent No. 3, he was suspended on 14.06.2015 about three years back on a complaint, which was later withdrawn by the complainant on 09.04.2015 and since then the authorities have not paid any subsistence allowances nor allowed the petitioner to cross examine the witnesses. The petitioner referred to a pronouncement of the Supreme Court in Ajay Kumar Choudhary -vs- Union of India, reported in (2015) 7 SCC 291 to take a stand that in view of such pronouncement, the suspension should not be extended beyond three months. The petitioner also makes an averment that the Gauhati High Court by an order of 21.04.2016, which is referred as Annexure-21 directed the authorities to pay subsistence allowance and therefore, the petitioner had filed the application seeking for payment of subsistence allowance.

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3. Against the said application, the authorities of Dhubri Law College had filed their written objection on 25.07.2018. The petition No. 89/2018 came up for its consideration before the learned Educational Tribunal, Dhubri and was given a final consideration by the order dated 27.06.2018, by which the authorities of the Dhubri Law College was directed to pay subsistence allowance @ 50% of the basic pay to the respondent No. 3 with effect from the date of his suspension.

4. Subsequent to the order dated 27.06.2018, the authorities of Dhubri Law College had filed petition No. 247/2018 u/s 151 of CPC for setting aside the order dated 27.06.2018 passed in petition No. 89/2018. The said petition was given a consideration by the order dated 25.09.2018. By the said order, the learned Educational Tribunal, Dhubri had taken note of an objection raised by the respondent No. 3 that there was suppression of material by the authorities of Dhubri Law College and the authorities of the Dhubri Law College countered the objection by stating that there was no suppression of material fact. Thereafter, certain judgments of the Supreme Court were referred. After referring to the judgments and without discussing as to what is provided in the judgments, the learned Tribunal writes that having gone through the decisions of the Hon'ble Supreme Court, the order dated 27.06.2018 was passed after hearing the learned counsel for the respondent No. 3 Abdul Kuddus. Then the learned Tribunal arrived at its conclusion that the engaged learned counsel for the petitioner Dhubri Law College either absented or took no steps and therefore, the order dated 27.06.2018 was passed. In the circumstance, the learned Tribunal was of the view that there is no requirement to recall the said order. Being aggrieved by the aforesaid two orders of the learned Educational Tribunal Dhubri dated 27.06.2018 and 25.09.2018, this writ petition is instituted.

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5. In the circumstance, we are required to look at the validity and acceptability of the two orders dated 27.06.2018 and 25.09.2018 of the learned Educational Tribunal, Dhubri. We take note of paragraph 3 of the order dated 27.06.2018, which is extracted as below:-

"I have gone through case record. It appears that as per the petitioner, he was appointed in the post of Lecturer in Dhubri Law College at Dhubri vide Memo No. DLC.1/APPTT/2011 dated 29.9.2011 and since then he has been working in the said post. The petitioner was suspended from the said post vide DLC.III/Confi/112/2014-15/5763 dated 15.6.2016. The petitioner has also stated that the authority namely Principal of Dhubri Law College has not paid any subsistence allowance to the petitioner after his suspension. It is axiomatic that subsistence allowance is to be paid to the delinquent immediately after his suspension. There found no objection from any corner against the prayer of the petitioner."

6. A reading of the extracted portion of the order makes it discernible that the learned Tribunal had recorded that the respondent No. 3 Abdul Kuddus was appointed in the post of Lecturer of Dhubri Law College by an order dated 29.09.2011 and was suspended by an order dated 15.06.2016 and further that the respondent No. 3 Abdul Kuddus was not paid any subsistence allowance by the Principal of Dhubri Law College. Accordingly, the learned Tribunal formed an opinion that it is 'axiomatic' that subsistence allowance is to be paid.

7. The said conclusion was arrived at without referring to any law, the nature of appointment of the respondent No. 3 Abdul Kuddus or other related aspect of the matter. We are of the view that the said approach of the learned Tribunal is unacceptable in law inasmuch as, even if the authorities of the Dhubri Law College had absented themselves at the time when the hearing took place, it was also incumbent upon the learned Tribunal to arrive at some conclusion as regards the prima facie acceptability of the claim of the respondent No. 3 Abdul Kuddus for payment of subsistence allowances. Merely because the other side Page No.# 7/7

had absented in the hearing, it cannot be under the law that whatever claim is made is to be allowed without even going into the aspect as to whether such claim otherwise is maintainable under the law.

8. From such point of view, we are unable to accept the order dated 27.06.2018. Accordingly, the same is set aside. As a consequence of setting aside the order dated 27.06.2018, the other order dated 25.09.2018 also becomes irrelevant and cannot have any further reference to it.

9. Having setting aside the order dated 27.06.2018, the matter stands remanded back to the learned Educational Tribunal, Dhubri for a fresh adjudication on the petition No. 89/2018 as per law. Considering it to be a matter of claim for subsistence allowance, we require the authorities of the Dhubri Law College as well as the respondent No. 3 Abdul Kuddus to remain present before the learned Educational Tribunal, Dhubri as agreed on 26.05.2022 and accordingly expect that both the parties would remain present on the said date.

10. Upon their appearance, the learned Educational Tribunal, Dhubri may proceed in the matter as per law and we request the learned Tribunal to decide the matter as expeditiously as possible without any undue delay to be caused either by the Tribunal or by the parties to the dispute.

The writ petition is disposed of as indicated above.

JUDGE

Comparing Assistant