Gauhati High Court
Biren Sarma vs The State Of Assam And 3 Ors on 26 September, 2022
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GAHC010148332018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4751/2018
BIREN SARMA
S/O- LATE GUNABHIRAM SARMA, R/O- KATAHBARI POLICE STATION,
AMBARI, FATASHIL, DIST- KAMRUP(M)
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE PRINCIPAL SECRETARY TO THE GOVT OF ASSAM,
CULTURAL AFFAIRS DEPTT, DISPUR, GHY- 6
2:THE VICE CHAIRMAN
SRIMANTA SANKARDEVA KALAKHETRA SOCIETY
PUNJABARI
GHY- 37
3:THE DIRECTOR OF CULTURAL AFFAIRS
ASSAM
GUWAHATI
4:THE SECRETARY
SRIMANTA SANKARDEVA KALAKHETRA SOCIETY
PUNJABARI
GHY- 3
Advocate for the Petitioner : MR. U C BHATTACHARYYA
Advocate for the Respondent : GA, ASSAM
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BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 26-09-2022
Heard Mr. U C Bhattacharyya, learned counsel for the petitioner. Also heard Mr. D
Bora, learned Junior Government Advocate for the respondents no. 1 and 3 respectively,
being the authorities under the Cultural Affairs Department, Government of Assam and Mr. J
K Goswami, learned Additional Senior Government Advocate for the respondents no. 2 and 4
being the authorities under the Srimanta Sankardeva Kalakhetra Society.
2. The petitioner was a LD Assistant at Srimanta Sankardeva Kalakhetra Society from
16.09.1994 up-to the date of his retirement on 28.02.2017. In course of his service, the
petitioner was subjected to a criminal proceeding resulting in a Criminal Appeal No. 87/2009
in which, as per the judgment and order dated 13.02.2013, he was acquitted from the
criminal charges. Having been in custody beyond a period of 48 (forty eight) hours, at the
investigation stage of the criminal proceeding, the petitioner was placed under suspension.
3. Being aggrieved, the petitioner instituted WP(C)/6819/2013 with a prayer for
reinstatement in service which was allowed by the judgment and order dated 25.11.2013.
After the judgment and order dated 25.11.2013, by the office order dated 04.01.2014, the
petitioner was reinstated in service and accordingly, he joined but as the petitioner was not
paid the subsistence allowances, he again instituted WP(C)/2506/2014 seeking for a direction
for payment of his current salary and in the meantime, by the order dated 30.06.2016, the
petitioner was paid the current salary as well as the arrear salary. In the meantime, he retired
from service on 28.02.2017.
4. This writ petition is instituted on the grievance that neither the retirement benefits nor
any gratuity amount had been paid to the petitioner.
5. Payment of pension to a retired employee is governed by the provision of Rule 21 of
the Assam Services Pension Rules, 1969 which inter-alia provides that the Governor may
withhold the payment of pension subject to pendency or contemplation of any departmental
or criminal proceeding. In the instant case, from the facts narrated above, it is noticeable that
as on 28.02.2017 when the petitioner retired from service, neither any departmental
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proceeding nor any criminal proceeding was either contemplated or pending against the
petitioner.
6. Accordingly, in terms of the Rule 21 of the Assam Services Pension Rules, 1969, the
payment of pension to the petitioner cannot be withheld by the respondents under the law.
As regards the gratuity, a statement is made by Mr. J K Goswami, learned Additional Senior
Government Advocate for the respondents no. 2 and 4 that as because the petitioner was
placed under suspension, therefore, his name was not included in the list of employees for
payment of gratuity.
7. When a person is placed under suspension, the legal implication is that he would be
debarred from performing his duties and be paid subsistence allowance. But at the same
time, it cannot be said that the other service conditions of the petitioner would also be kept in
abeyance as because the employee may have been placed under suspension. If the petitioner
was not included in the list of beneficiaries of the payment of gratuity, it is for the
respondents to pass reasoned necessary order correcting the same and merely, because his
name was not included in the list of beneficiaries as because he was placed under
suspension, cannot be a reason to deprive him from the payment of gratuity.
8. Accordingly, the respondent no. 4 being the Secretary of the Srimanta Sankardeva
Kalakhetra Society is directed to pass a reasoned order on the entitlement of the petitioner
towards the pension and gratuity in the light of the observation passed hereinabove. The
reasoned order be passed within a period of one month from the receipt of certified copy of
this order.
9. Mr. J K Goswami, learned Additional Senior Government Advocate for the respondents
no. 2 and 4 states that the petitioner is already drawing the monthly pension. If it is so, no
further order is required to be passed pursuant to the order of this Court. In such event, the
order regarding gratuity would be given its effect.
Writ petition stands allowed as indicated above.
JUDGE
Comparing Assistant
