Page No.# 1/ vs The Union Of India And 7 Ors
2025 Latest Caselaw 1213 Gua

Gauhati High Court

Page No.# 1/ vs The Union Of India And 7 Ors on 5 June, 2025

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GAHC010015142017




                                                             2025:GAU-AS:7356

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

                        Case No. : WP(C)/1404/2017

         MD. AYUB HUSSAIN
         S/O. MD. AMIR HUSSAIN, VILL. NA-ALI-MUR, P.O. PURANIGUDAM, P.S.
         SAMAGURI, DIST. NAGAON, ASSAM, PRESENTLY RESIDING AT R.C.
         NAGAR, TRIPURA.



         VERSUS

         THE UNION OF INDIA and 7 ORS
         REP. BY THE SECRETARY, MINISTRY OF POWER, NEW DELHI.

         2:CHAIRMAN CUM MANAGING DIRECTOR
          NORTH EASTERN ELECTRIC POWER CORPORATION LOWER NEW
         COLONY
          BOOKLAND COMPOUND
          SHILLONG.

         3:THE EXECUTIVE DIRECTOR
          PERSONAL and ADMINISTRATION
          NEEPCO LTD. SHILLONG.

         4:SENIOR PERSONAL OFFICER
          NEEPCO LTD. SHILLONG.

         5:THE DIRECTOR PERSONNEL
          NEEPCO LTD. SHILLONG.

         6:DEPUTY MANAGER PandA ESST.
          NEEPCO LTD. SHILLONG.

         7:THE SR. MANAGER P and A
         AGTP
          NEEPCO LTD. R.C. NAGAR
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             TRIPURA W.

            8:THE SR. MANAGER HR
            AGTP
             NEEPCO LTD. R.C. NAGAR
            TRIPURA W

Advocate for the Petitioner   : MR.A CHOUDHURY, MR.S ISLAM,MS.M KONCH

Advocate for the Respondent : ASSTT.S.G.I., MR H K SARMA(R-2 TO 8),MS. S. TODI(R-2 TO

8),MS. D SWAMI (R- 2-8),C.G.C.,MR.M Z AHMED(SC,NEEP CO.),MRS.A DASS,MR D SENAPATI (R- 2-8)

BEFORE JUDGMENT & ORDER

Heard Mr. A. Choudhury, learned counsel for the petitioner. Also heard Ms. A. Gayan, learned Central Government Counsel for the respondent No.1 and Mr. D. Senapati and Ms. S. Todi, learned counsels for the respondent Nos.2--8.

2. The challenge made in this writ petition is to the communication dated 06.04.2010, issued by the Deputy Manager (P & A), Esst., NEEPCO Ltd., Shillong, whereby, a decision has been conveyed to the petitioner that the period of long gap of absence of the petitioner is treated as break in service and not entitled to draw subsistence allowance owing to not reporting during the period of suspension.

3. Briefly put, the facts of the case are that the petitioner was appointed as Junior Engineer (Civil) Grade-II of the North Eastern Electric Power Corporation Limited (in short 'the NEEPCO') vide order dated 08.04.1988 and joined his service at Doyang Hydro Electric Project (DHEP), Wokha at Nagaland on 27.04.1988. The petitioner was posted as Junior Engineer (Civil) Grade-I, on in-charge basis at Kopili Hydro Electric Project (KHEP), vide order dated 14.03.1991, on his own request wherein he joined on 25.04.1991. On 05.06.1991, the petitioner came to know that a police case has been registered against him on the basis of Page No.# 3/10

the written complaint made by the Security Officer of the DHEP, in respect of theft of fencing posts. The petitioner was arrested on 20.08.1991 and put behind the bar for more than 48 hours. The petitioner submitted a representation on 06.07.1991, before the respondent No.2, narrating his bad experience in DHEP. However, the petitioner was put under suspension w.e.f. 20.06.1991, vide order dated 11.10.1991.

4. The petitioner again submitted his joining report on 11.10.1991, stating that he could not join earlier because of intensive medical treatment, he had undergone, starting from 26.06.1991 in connection with the torture, which has been subjected to him by the senior security officer before handing him over to police in connection with the aforesaid Criminal Case. However, the same was returned for want of necessary medical fitness certificate.

5. The petitioner on 01.01.1992, submitted a representation tendering his resignation from the service stating his sufferings and unwillingness to serve the NEEPCO any further and prayed for clear his dues and other entitlement. Thereafter, a reminder was submitted with regard to his prayer for resignation on 12.02.1991.

6. In the meantime, the criminal case being Wokha P.S. Case No.4(4)/91, under Section 380 of the IPC, corresponding to G.R. Case No.34/91, against the petitioner was closed on the ground of insufficiency of evidence against him on 22.07.1993, by the learned Sub- Divisional Magistrate, Wokha. Thereafter, on 17.04.2001, after lapse of 9 years, the petitioner submitted an application seeking withdrawal of resignation letter which he has submitted on 01.01.1992. He submitted joining report again on 18.04.2001, which was forwarded to the competent authority.

7. On 27.02.2002, an order was issued by the respondent authorities to the effect that consequent upon the disposal of the criminal case against the petitioner, the competent authorities have accorded approval towards acceptance of the resignation of the petitioner w.e.f. 01.01.1992 after the suspension order was revoked.

8. Being aggrieved, the petitioner approached this Court being WP(C) No.4919/2002, Page No.# 4/10

challenging the suspension, not allowing to join in the service as well as acceptance of resignation of the petitioner after ten years of submission of prayer for resignation, contending that the same has been accepted without considering the withdrawal prayer of the resignation before the acceptance.

9. This Court, after considering the matter, vide order dated 15.02.2008, allowed the writ petition and set aside the order of acceptance of resignation dated 27.02.2002, issued by the respondents. However, it has been observed that an appropriate consequential order had to be issued by the respondents, in respect of the service of the petitioner in accordance with law. The question, the petitioner is or is not to be allowed to join in his service had to be decided by the respondent authorities in accordance with the law and having regards to the facts and circumstances of the case. Thereafter, the respondent authorities through the Senior Manager (P & A), vide communication dated 13.03.2009, intimated the petitioner to join in his service stating that the competent authority has allowed him to join in the substantive post of KHEP, in view of the order of the High Court, subject to production of medical fitness certificate within 15 days. The petitioner accordingly joined his service on 29.04.2009, on reinstatement.

10. It is contended that the petitioner vide an application for release of subsistence allowance, full pay and other consequential service benefits and the period of absence from duty may be treated as period of spent on duty. Vide communication dated 06.04.2010, the Deputy Manager (P & A) Estt. NEEPCO, the rejection of the claim of the petitioner is conveyed, stating that the period of long absence shall be treated as break in service and not enable to draw subsistence allowances owing to not reporting during the period of suspension. Hence, this writ petition, essentially seeking for payment of subsistence allowances, during the period of suspension i.e. from 20.06.1991 to 27.02.2002.

11. Mr. A. Choudhury, learned counsel for the petitioner, by referring to the provisions of the NEEPCO Conduct, Discipline and Appeal Rules, particularly Rules 24, 25 and 26, submits that the Rule 24 would not be invoked to the petitioner, as the petitioner was suffering from mental problem and had submitted resignation letter, which was not accepted for nearly 10 Page No.# 5/10

(ten) years. He submits that since the petitioner has been exonerated from the criminal case and there being no departmental proceeding initiated against the petitioner, the full pay and allowances from 1991 to 2002 ought to have been granted to him. Therefore, he submits that the respondent authorities may be directed to grant the subsistence allowance for the period of suspension i.e. from 1991 to 2002.

12. Mr. D. Senapati, learned counsel for the respondent Nos.2--8, referring to the provisions of Rule 24 of the NEEPCO Conduct, Discipline and Appeal Rules submits that the petitioner had never attended the office even for once during the period of suspension. Rather, during the subsistence of suspension order, he submitted a resignation letter which was ultimately accepted, although subsequently the said acceptance of the resignation was set aside and quashed by this Court. The Rule requires that the suspended employee shall not leave the Corporation without the written permission of the employer and it clearly provides that an employee under suspension shall be required to report in the office of the Security Officer on each working day at the given time. In case any employee under suspension does not report in the office as mentioned above, the subsistence allowance for such period is liable to be deducted from the subsistence allowance so payable. He further submits that the provisions of Rule 25 and 26 would not come into play, as the petitioner has failed to report to the concerned authority during his suspension period, rather he has left and abandoned his service. Therefore, the petitioner is not entitled to the subsistence allowance and as such the respondent authorities have rightly rejected his claim and treated the suspension period, as not spent on duty.

13. Due consideration has been extended to the rival submissions of learned counsel for the parties and perused the materials available on record.

14. After the suspension of the petitioner on 11.10.1991, the petitioner submitted an application praying for resignation from service on 01.01.1992 and thereafter, after a long gap of nine (9) years, the petitioner submitted an application seeking withdrawal of his resignation letter, submitted in the year 1992, on 17.04.2001 and also submitted his joining report on the next day.

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15. Admittedly, the respondent authority accepted the resignation letter of the petitioner vide order dated 27.02.2002, post submission of application for withdrawal of the resignation by the petitioner. As noted above, this Court has set aside the acceptance of the resignation dated 27.02.2002. Thereafter, the petitioner upon closure of the criminal case, due to want of sufficiency of evidence, the respondent authorities has revoked the suspension order on the same day i.e. on 27.02.2002, and on the same day the resignation of the petitioner was accepted. Accordingly, the petitioner was reinstated and allowed to join in his service vide communication dated 13.03.2009. The respondents rejected the claim of the petitioner with regard to full payment as well as other entitlement during the suspension period, treating the period of suspension to be not spent on duty.

16. On consideration of the matter, the issue to be determined in the present case is as to whether the petitioner would be entitled to the subsistence allowance under the NEEPCO Conduct, Discipline and Appeal Rules. To appreciate, the relevant Rules are referred and considered, which are reproduced here-in-blow:

"24. SUSPENSION:

1) The appointing authority or any authority to which it is sub-ordinate or the disciplinary authority or any other authority empowered in that behalf by the Board or the Chairman-cum- Managing Director by general or special order may place an employee under suspension:-

a) Where a disciplinary proceeding against him is contemplated or is pending; or

b) Where a case against him in respect of any criminal offence is under investigation or trial.

2) An employee who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours shall be deemed to have been suspended with effect from the date of detention, and shall remain under suspension until further orders.

3) Where a penalty of dismissal or removal from service imposed upon an employee under suspension is set aside on appeal or on review under these rules and the case is remitted for further enquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal or removal and shall remain in force until further orders,

4) Where a penalty of dismissal or removal from service imposed upon an employee is set aside or declared or rendered void in consequence of or by a decision of a court of law and disciplinary authority, on consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which penalty of dismissal or removal was originally imposed. the employee shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal of removal and shall continue to remain under suspension until further orders.

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5) An order of suspension made or deemed to have been made under this rule may at any time be revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.

6) The suspended employee shall not leave the station without the written permission of the Corporation.

Note: An employee under suspension shall be required to report in the office of the Security Officer (or any other officer as may be specified) on each working day at the given time. In case an employee under suspension does not report in the office as mentioned above, the subsistence allowance for such period is liable to be deducted from the subsistence allowance so payable.

25. SUBSISTENCE ALLOWANCE:

1) An employee under suspension shall be entitled to draw subsistence allowance equal to 50 percent of his basic pay provided the disciplinary authority is satisfied that the employee is not engaged in any other employment or business or profession or vocation. In addition he shall be entitled to Dearness Allowance admissible on such subsistence allowance and other allowances he was in receipt of on the date of suspension provided the suspending authority is satisfied that the employee continues to meet the expenditure for which the allowance was granted.

2) Where the period of suspension exceed six months, the authority which made or is deemed to have made the order of suspension, shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first month follows:

i) The amount of subsistence allowance may be increased to 75 percent of basic pay and allowances thereof if, in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to, the employee under suspension.

ii) The amount of subsistence allowance may be reduced to 25 percent of basic pay and allowance thereon if in the opinion of said authority, the period of suspension has been prolonged due to the reasons to be recorded in writing, directly attributable to the employee under suspension.

3) If an employee is arrested by the Police on a criminal charge and bail is not granted, no subsistence allowance is payable. On grant of bail, if the competent authority decides to continue the suspension, the employee shall be entitled to subsistence allowance from the date he is granted bail.

26. TREATMENT OF THE PERIOD OF SUSPENSION:

1) When the employee under suspension is reinstated, the competent authority may grant to him the following pay and allowances for the period of suspension:

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a) if the employee is exonerated and not awarded any of the penalties mentioned in Rule 27 the full pay and allowances which he would have been entitled to if he had not been suspended, less the subsistence allowances already paid to him, and

b) if otherwise, such proportion of pay and allowances as the competent authority may prescribe

2) In a case falling under sub-clause (a) the period of absence from duty will be treated as a period spent on duty. In case falling under sub-clause (b) it will not be treated as period spent on duty unless the competent authority so directs".

17. Perusal of the above provision shows that under Rule 24, it is required that the suspended employee shall not leave the station without the written permission of the Corporation and providing that an employee under suspension shall be required to report in the office of the Security Officer on each working day at the given time. In case any employee under suspension does not report in the office, the subsistence allowance for such period is liable to be deducted from the subsistence allowance so payable. Rule 25 reflects that the employee under suspension shall be entitled to subsistence allowance equal to 50 percent of his basic pay provided the disciplinary authority is satisfied that the employee is not engaged in any other employment etc. Rule 26 provides for the treatment of the period of suspension, which states that when the employee under suspension is reinstated, the competent authority may grant pay and allowances for the period of suspension, if the employee is exonerated and not awarded any of the penalties mentioned in Rule 27, the full pay and allowances which he would have been entitled to, if he had not been suspended, less the subsistence allowances already paid to him. In case the employee is exonerated, the period of absence from duty will be treated as a period spent on duty.

18. As noted above, the petitioner has only not attended the office but appears to have abandoned his service for a long period of nine (9) years, after submission of his resignation letter and appears to have re-surfaced only after nine (9) years, in the year 2002, by filing an application seeking withdrawal of his resignation application. It is admitted position that the criminal case against the petitioner, on the basis of which he was arrested, consequently suspended has been closed due to insufficiency of evidence by the competent Court. Thereafter, the suspension of the petitioner was revoked and accepted the resignation.

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However, this Court had set aside such acceptance of the resignation of the petitioner, consequent to which the petitioner has been reinstated and allowed to join in his service.

19. On careful reading of Rule 26, it is noticed that when the employee under suspension is reinstated, the competent authority may grant pay and allowances for the period of suspension, if the employee is exonerated and not awarded any of the penalties provided under Rule 27 and if the authority granted pay and allowances, the period of suspension will be treated as spent on duty. The note attached to the Rule 24 provides that an employee under suspension shall be required to report in the office and in case of failure, the subsistence allowance for such period is liable to be deducted from the subsistence allowance so payable.

20. The admitted position is that the petitioner has not reported to the office even for once during the suspension period, till he submitted his application seeking withdrawal of the resignation application on 17.04.2001.

21. Having considered the provisions here-in-above, since the criminal case/proceedings against the petitioner, on the basis of which the petitioner was suspended, stands closed and the petitioner has been reinstated, the respondent authorities ought to have resorted to Rule 26 of the NEEPCO Conduct, Discipline and Appeal Rules. The materials reveals that the said provision of Rule 26 has not been resorted to, except a decision to treat the suspension period of the petitioner is treated as not on duty. It is equally admitted position that the petitioner has not reported or attended the office even for once during his suspension period. In that event, if the petitioner has not attend or report to the office, in terms of the Note attached to Rule 24, the subsistence allowance for such period ought to have been deducted from the subsistence allowance, so payable to the petitioner. Merely because the petitioner had not attended or reported to the office, as required under Rule 24, the entitlement of the subsistence allowance cannot be totally denied, as it clearly provides for deduction of subsistence allowance payable and not the full subsistence allowance per se. The petitioner was not at all provided any subsistence allowance, due to the reason that the petitioner has failed to attend to or report the office, as required under Rule 24.

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22. Having considered above, in my considered opinion, the respondent authorities ought to have resorted to the Rule 26, upon closure of the criminal case/proceeding against the petitioner, which would be akin to exoneration from the said case. Thus, the petitioner, admittedly, having been reinstated, the applicability of Rule 26 is inescapable.

23. In view of the discussion made here-in-above, I am of the considered view that the petitioner is entitled to subsistence allowance for the period of his suspension. However, in the facts and circumstances of the case, the petitioner would be entitled to subsistence allowance for the period from 18.04.2001 to 27.02.2002. Accordingly, it is directed that the respondent authorities shall release the subsistence allowance for the above period within six (6) weeks from today.

24. Writ Petition stands disposed of, accordingly.

JUDGE

Comparing Assistant