Page No.# 1/9 vs The State Of Assam And 3 Ors
2025 Latest Caselaw 3293 Gua

Gauhati High Court

Page No.# 1/9 vs The State Of Assam And 3 Ors on 19 February, 2025

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                                Page No.# 1/9

GAHC010031492025




                                                          2025:GAU-AS:1737

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


                           Case No. : WP(C)/816/2025


         SABLU MAZUMDER
         S/O SURMAN ALI MAZUMDER
         R/O VILL- PAIKAN, P.O.PAIKAN
         P.S.HAILAKANDI,
         DIST. HAILAKANDI, PIN-788155.


         VERSUS


         THE STATE OF ASSAM AND 3 ORS.
         REP BY THE SECRETARY TO THE GOVT OF ASSAM, ELEMENTARY
         EDUCATION DEPARTMENT, GUWAHATI-781019


         2:THE DIRECTOR OF ELEMENTARY EDUCATION
          ELEMENTARY EDUCATION DEPARTMENT
          GOVT OF ASSAM
          KAHILIPARA
         GUWAHATI-19


         3:DISTRICT ELEMENTARY EDUCATION OFFICER (DEEO)
          HAILAKANDI
          151
          OLD HOSPITAL ROAD
          BASHDAHAR
          HAILAKANDI
         ASSAM-788151.


         4:BLOCK ELEMENTARY EDUCATION OFFICER (BEEO)
                                                                      Page No.# 2/9

            HAILAKANDI
            ASSAM-78815


Advocate for the Petitioner : MR. I CHOWDHURY SR ADV, MR. R CHOUHAN,MR T
DAS,MR. S BISWAKARMA


Advocate for the Respondent : SC, ELEM. EDU,




                                 BEFORE
               HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                        ORDER

Date : 19-02-2025

1. Heard Mr. I.Chowdhury, learned Senior Counsel assisted by Mr. S.Biswakarma, learned Counsel for the petitioner, who prays that the arrear salary of the petitioner for the period from 15.05.2017 to 28.03.2022 should be paid. He submits that the petitioner had been suspended from his service on 15.02.2017 and the petitioner had been reinstated into service vide, order dated 28.03.2022, after the petitioner had approached this Court by way of WP (C) No. 1863/2022, wherein, he had prayed for setting aside the suspension order, in terms of the Judgment of the Supreme Court in the case of Ajay Kumar Choudhary vs- Union of India & anr., reported in (2015) 7 SCC 291. After the petitioner was reinstated into service, the writ petitioner withdrew the WP (C) No. 1863/2022, as reflected in the order dated 07.04.2022 passed in WP (C) No. 1863/2022.

2. The petitioner's counsel submits that in terms of the judgment of the Supreme Court in the case of Ajay Kumar Choudhary (supra), a suspension order cannot survive beyond three months, unless charge sheet/ memorandum Page No.# 3/9

of charge is served to the delinquent officer and the order of suspension is reviewed.

3. The petitioner's counsel submits that the suspension order should have automatically been suspended after three months, i.e. on 15.05.2017, in terms of the Judgment of the Supreme Court in the case of Ajay Kumar Choudhary (supra), as no charge sheet/ memorandum of charge had been furnished to the petitioner within three months from the date of suspension order. However, the petitioner continued to be on suspension and it was only due to the petitioner's writ petition i.e. WP (C) No.1863/2022, which was filed on 02.03.2022, that the petitioner was reinstated into service on 28.03.2022, in terms of the judgment of the Supreme Court in Ajay Kumar Choudhury (supra), wherein it was held that the validity of suspension order cannot be extended beyond three months unless the memorandum of charge/charge sheet is served on the delinquent officer. In the event, memorandum of charge/ charge sheet is served, the State respondents are required to undertake a review for extension of the suspension order.

The petitioner's counsel submits that as the decision of the Supreme Court is the law of the land in terms of the Article 142 of the Constitution, the petitioner would have to be paid his arrear salary for the period from 15.05.2017 to 28.03.2022, i.e. from the date the petitioner should have been reinstated back into service, as the charge sheet/memorandum of charge had not been furnished to the petitioner, within 90 days from the issue of the suspension order. Mr. I. Chowdhury, learned Senior Counsel in support of his submissions has relied on the Judgment of the Supreme Court in the case of Commissioner, Karnataka Housing Board -vs- C. Muddaiah reported in (2007) 7 SCC 689.

Page No.# 4/9

4. The petitioner's counsel submits that as on date, the criminal case and the departmental proceedings that has been initiated against the petitioner is still pending.

5. Mr. B.Kaushik, learned counsel for the respondents submits that the issue as to whether the petitioner is entitled to backwages can always be decided after closure of the criminal/departmental proceedings initiated against the petitioner in terms of FR 54-B, applicable to the State of Assam. He accordingly submits that the present writ petition being premature, the same should be dismissed and the issue of backwages/arrear salary will be decided at the closure/ conclusion of the criminal/departmental proceedings.

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

7. FR 54-B.(1) states as follows:

"F.R. 54-B. (I) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation while under suspension, the authority competent to order reinstatement shall consider and make a specific order--

(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement on superannuation, as the case may be; and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or the court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all Page No.# 5/9

purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.

(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended :

Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after hearing the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall be paid for the period of such delay only such proportion of such pay and allowances as it may determine.

(4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes.

(5) In cases other than those falling under sub-rules (2) and (3) the Government servant shall subject to the provisions of sub-rules (8) and (9) be paid such proportion of the full pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any submitted by him in that connection within such period which in no case shall exceed sixty days from the date of which the notice, which has been Page No.# 6/9

served as may be specified in the notice.

(6) Where suspension is revoked pending finalisation of the disciplinary or the court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (2) who shall make an order according to the provisions of sub-rule (3) or (5) as the case may be.

(7) In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specified purpose:

Provided that if the Government servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.

Note 1- The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of:-

(a) extraordinary leave in excess of three months in the case of temporary Government servant; and

(b) leave of any kind in excess of five years in the case of permanent or quasi-permanent Government servant.

Note 2- In case falling under sub-rules (5) and (7) of F.R. 54-B, the competent authority may pay such proportion of such pay and allowances as admissible under F.R. 53 read with sub-rule (9) of F.R. 54-B with prior Page No.# 7/9

concurrence of Finance Department.

(8) The payment of allowances under sub-rule (3) or sub-rule (5) shall be subject to all conditions under which such allowances are admissible.

(9) The proportion of the full pay and allowances determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under Rule 53."

8. In the case of Commissioner, Karnataka Housing Board (supra) , the Supreme Court has held that the Court may in a given case direct the authorities to grant all benefits to an employee as if he had worked, even though the person may not have worked due to not being allowed to do so, even if he wanted to work.

9. Para 34 of Commissioner, Karnataka Housing Board -vs- C. Muddaiah (supra), states as follows:-

"34. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally Page No.# 8/9

confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected."

10. A perusal of FR 54-B.(3) clearly shows that when the authority, competent to order reinstatement, is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of Sub- Rule(8), be paid the full pay and allowances which he would have been entitled, had he not been suspended. Sub-Rule 4 of FR 54-B. provides that in a case falling under Sub-Rule 3, the period of suspension shall be treated as period spent on duty for all purposes.

11. In the present case, a criminal case, i.e., Hailakandi P.S. Case No. 233/2017 dated 01.05.2017 under Sections 120(B)/468/420/409 IPC is pending against the petitioner in which he is an accused and the stage of the case is in the trial stage. In the above case, the petitioner alongwith 3 (three) others have been charged with manipulation of records, misutilisation of Government funds through drawal of salaries and misappropriation of Mid-Day-Meals funds etc, besides forgery of records. Further, the departmental proceeding initiated against the petitioner is also pending. It is also an admitted fact that the petitioner has been given his subsistence allowance during his suspension period. Keeping in view the provisions of FR 54-B, it is clear that the question of whether the petitioner would be entitled to backwages for the period between 15.02.2017 and till his date of reinstatement, i.e., 28.03.2022, will/can be decided by the State respondents at the time of conclusion of the criminal trial/departmental proceeding. As the said issue will be determined at the close of the conclusion of the criminal trial/departmental proceeding, this Court is of the view that the prayer of the petitioner for payment of his arrear salary for the Page No.# 9/9

period from 15.05.2017 to 28.03.2022 is pre-mature at this stage. Accordingly, the writ petition is dismissed as being pre-mature.

JUDGE

Comparing Assistant