Allowed

Utpal Das v. the State of Assam and 3 Ors.

Gauhati HC13 Sept 2022WP(C)/1534/2021

Case brief

AI extract

What is this about?

The Gauhati High Court set aside two disciplinary orders imposing penalties of Leave Without Pay on petitioners, holding that LWP is not a penalty specified in the applicable Rules or Act. The court remitted the matters for reconsideration with proper consideration of the case background.

What did the court decide?

Impugned orders imposing Leave Without Pay set aside; matters remitted to disciplinary authority to pass speaking orders within six weeks.

Utpal Das Vs the State of Assam and 3 Ors. — Service and Employment | Gauhati HC (2022)

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Page No.# 1/14

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GAHC010195352020

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

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Writ Petition (Civil) no. 1534/2021

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UTPAL DAS S/O BHADRESWAR DAS RESIDENT OF VILLAGE REWAMALESWAR PO MALAIBARI PS KHETRI DIST - KAMRUP [M] ASSAM 782403

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.….……….Petitioner

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-Versus-

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THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI 781006.

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THE SPECIAL DIRECTOR GENERAL OF POLICE CUM DIRECTOR FIRE AND EMERGENCY SERVICES, ASSAM PANBAZAR GUWAHATI 01

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THE DIRECTOR FIRE AND EMERGENCY SERVICES, ASSAM PANBAZAR GUWAHATI 781001

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THE DEPUTY DIRECTOR FIRE AND EMERGENCY SERVICES, ASSAM, PANBAZAR, GUWAHATI – 781001

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……………….Respondents

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Page No.# 2/14

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With Writ Petition (Civil) no. 1546/2021

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RANJAN KUMAR NATH S/O LATE MADHURAM NATH RESIDENT OF MADHUPUR, NORTH GUWAHATI, KAMRUP [M] ASSAM - 781031

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.….……….Petitioner

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-Versus-

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THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HOME DEPARTMENT, DISPUR, GUWAHATI 781006.

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THE SPECIAL DIRECTOR GENERAL OF POLICE CUM DIRECTOR FIRE AND EMERGENCY SERVICES, ASSAM, PANBAZAR, GUWAHATI – 01.

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THE DIRECTOR FIRE AND EMERGENCY SERVICES ASSAM PANBAZAR GUWAHATI – 01.

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THE DEPUTY DIRECTOR FIRE AND EMERGENCY SERVICES, ASSAM PANBAZAR, GUWAHATI 78100

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……………….Respondents

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Advocates :

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For the Petitioner : Mr. P. Mahanta, Advocate

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For the Respondents : Mr. T.C. Chutia, Addl. Senior Government Adv., Assam Date of Hearing & Judgment : 13.09.2022

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Page No.# 3/14

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BEFORE

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HON’BLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER [ORAL]

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The two writ petitions – W.P.[C] no. 1534/2021 & W.P.[C] no. 1546 – are preferred by the two petitioners separately against the same nature of penalties imposed upon them through two separate orders, that is, F&ESO no. 729 dated 30.03.2019 and F&ESO no. 515 dated 11.03.2019 respectively passed by the respondent no. 2 i.e. the Special Director General of Police–cum–Director, Fire & Emergency Services, Assam.

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As the issues involved in the two writ petitions are same and the factual matrices are almost same, the two writ petitions are taken up together, at the instance of and agreed to by the learned counsel for the parties at the admission stage.

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By F&ESO no. 729 dated 30.03.2019, the petitioner in the writ petition, W.P.[C] no. 1534/2021 has been awarded penalty in the form of 631 days Leave Without Pay [LWP] for the period of his absence and suspension w.e.f. 08.07.2017 to 30.03.2019 purportedly under Rule 7 of the Assam Services [Discipline and Appeal] Rules, 1964 [‘the 1964 Rules’ and/or ‘Rules, 1964] and Section 6[2] of the Assam Fire Service Act, 1985 [‘the AFS Act, 1985’, for short].

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3.1. By F&ESO no. 515 dated 11.03.2019, the petitioner in the writ petition, W.P.[C] no. 1546/2021 has been awarded penalty in the form of 612 days Leave Without Pay [LWP] for the period of his absence and suspension w.e.f. 08.07.2017 to 11.03.2019 purportedly under Rule 7 of the 1964 Rules and Section 6[2] of the AFS Act, 1985.

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3.2. Both the orders had observed that the respective periods would be treated as no work no pay and the petitioners would start drawing regular salary with immediate effect.

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A First Information Report [FIR] came to be lodged before the Officer In-Charge, Garmur Police Station on 07.07.2017 by a Sub-Inspector of Police, attached to Garmur Police

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Page No.# 4/14

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Station, with the allegations inter alia that he received a secret information from a reliable source that the two petitioners and others were collecting money from some candidates for the post of constables. On receipt of the information, the matter was enquired into by registration of Garmur Police Station General Diary Entry no. 112 dated 07.07.2017. It was alleged that the accused named therein had made a wide network to facilitate recruitment of constables in lieu of money and there was an urgent need to unearth the entire criminal network in the criminal conspiracy to recruit constables in lieu of money. The said FIR had been registered as Garmur Police Station Case no. 36/2017 for the offences under Sections 120B/384/420/34, Indian Penal Code [IPC] and one Sub-Inspector of Police was entrusted to investigate the case.

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4.1. In connection with Garmur Police Station Case no. 36/2017, the petitioner in the writ petition, W.P.[C] no. 1534/2021 [hereinafter referred to as ‘the first petitioner’, for easy reference] was not arrested in connection as he was granted the benefit of pre-arrest bail under Section 438, CrPC by the Court by an order dated 05.09.2017 in AB no. 1593/2017. However, the petitioner in the writ petition, W.P.[C] no. 1546/2021 [hereinafter referred to as ‘the second petitioner’, for easy reference] was arrested on 08.07.2017. Subsequently, the second petitioner was granted regular bail by an order dated 07.09.2017.

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The first petitioner is a Driver whereas the second petitioner is a Fireman under the Director of Fire & Emergency Service, Assam. By an order dated 11.07.2017, the first petitioner was placed under suspension w.e.f. 10.07.2017 on the ground that he had remained absent w.e.f. 10.07.2017 and the second petitioner was placed under suspension w.e.f. 09.07.2017 by an order dated 18.07.2017 on the ground that he was arrested in connection with Garmur Police Station Case no. 36/2017 on 08.07.2017.

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The investigation of Garmur Police Station Case no. 36/2017 [corresponding G.R. Case no. 115/2017] after completion, resulted into a charge sheet under Section 173[2], CrPC on finding a prima facie case against the second petitioner under Sections 120B/384/420, IPC. Though the first petitioner was named in the FIR, he was not charge sheeted in connection with Garmur Police Station Case no. 36/2017.

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In the meantime, the first petitioner was served with a show cause notice dated 25.08.2017 under Rule 9 of the 1964 Rules read with Article 311 of the Constitution of India and Section 6[2] of the AFS Act, 1985 asking him as to why the penalties prescribed in Rule 7 of the 1964 Act should not be inflicted upon him on the following charge along with the statement of the allegations therewith, :-

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“While you were posted at M.T. Branch, F&ES, Assam, you were attached with the then S.P. Cum F&ESA, Shri Paragjyoti Baruah, APS, where a case has been registered against you at Garmur P/S vide Garmur P/S case no. 36/2017 u/s 120[B]/384/420/34 IPC for offering post of constable in Fire & Emergency Services, Assam / SDRF in lieu of money. Accordingly you were sought by S.I. Nilutpal Doley, I/O of the said case on 08.07.2017 for interrogation. But after getting the information you wilfully remained untraced till date.”

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7.1. The second petitioner was also served with a show cause notice dated 28.08.2017 under Rule 9 of the 1964 Rules read with Article 311 of the Constitution of India and Section 6[2] of the AFS Act, 1985 asking him as to why the penalties prescribed in Rule 7 of the 1964 Act should not be inflicted upon him on the following charges along with the statements of the allegations therewith, :-

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“While you were posted at North Guwahati Fire & Emergency Services Station, a case has been registered against you at Garmur P/S vide Garmur P/S case no. 36/2017 u/s 120[B]/384/420/34 IPC for offering post of constable in Fire & Emergency Services, Assam / SDRF in lieu of money. Accordingly you were taken under custody of Garmur P.S. by S.I. Nilutpal Doley, I/O of the said case on 08.07.2017 for interrogation, wherein after sufficient evidences were found against you in connection with the case referred above you were arrested as well as forwarded into the Judicial custody on 09.07.2017.”

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Following the show cause notices and receipt of the replies to the show cause notices, an Enquiry Officer was appointed for the disciplinary proceeding initiated against the first

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petitioner vide D.P. no. 05/2017 and against the second petitioner vide D.P. no. 06/2017. The Enquiry Officer submitted separate Enquiry Reports against the two petitioners. In D.P. no. 05/2017, the Enquiry Officer submitted his Enquiry Report on 05.03.2018 with the finding that the charge framed against the first petitioner was proved that he was wanted in connection with Garmur Police Station Case no. 36/2017 and further, he was absent on duty w.e.f. 10.07.2017 to 08.09.2017. In connection with D.P. no. 06/2017, the Enquiry Officer submitted his Enquiry Report on 08.10.2018 holding that the charge framed against the second petitioner was proved as he was arrested in connection with Garmur Case no. 36/2017 and he is facing trial in the Court after being charge sheeted vide Charge Sheet no. 26/2017 dated 09.10.2017.

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In the subsequent period, the trial of G.R. Case no. 115/2017, arising out of Garmur Police Station Case no. 36/2017, reached its conclusion and the Court of learned SubDivisional Judicial Magistrate [M], Majuli, Jorhat [‘the trial court’, for short] had delivered its judgment and order on 11.02.2019 wherein the learned trial court had observed that the prosecution had miserably failed to prove the guilt against the second petitioner under Section 420, IPC beyond all reasonable doubts and thus, the second petitioner was acquitted of the charge on benefit of doubt.

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Both the petitioners were furnished with the Enquiry Reports asking their explanations. It is not in dispute that both the petitioners had furnished their explanations against the Enquiry Reports.

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Thereafter by the impugned order i.e. F&ESO no. 720 dated 30.03.2019, the respondent no. 2 has passed the order of penalty against the first petitioner in the following manner :-

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“Driver Utpal Das wilfully remained unauthorized absent w.e.f. 08.07.2017 to 10.09.2017 to evade police arrest when I/C of the Majuli P.S. came in search of him on 08.07.2017 in connection with case no. 36/2017 U/S -120[B]/384/420/34 IPC. During suspension period he was irregular and remained absent most of the days though he was supposed to remain

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Page No.# 7/14

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present at headquarters attending Roll Cells.

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Therefore, under Rule 7 of the Assam Services [Discipline and Appeal] Rules, 1964 and under Section 6[2] of Assam Fire Service Act, 1985, Driver Utpal Das is awarded 631 [six hundred thirty one] days L.W.P. for the period of absence and suspension w.e.f. 08.07.2017 to 30.03.2019 as it is treated as no work no pay.

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Hence D/P No. 05/2017 drawn up against Driver Utpal Das is hereby disposed off. He will draw regular salary with immediate effect. Now, he is transferred and posted to Ratabari Fire & Emergency services station.”

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11.1. By the impugned order i.e. F&ESO no. 515 dated 11.03.2019, the respondent no. 2 has passed the order of penalty against the second petitioner in the following manner :-

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“So, FM/66 Ranjan Kr. Nath who was placed under suspension vide this office F&ESO no. 1766 dated 18.07.2017 is hereby released from suspension and re-instated back into service with immediate effect. During suspension period he was supposed to remain present at H.Q. F&ES, Assam, Guwahati but he was found absent most of the days.

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Therefore, under Rule 7 of the Assam Services [Discipline and Appeal] Rules, 1964 and under Section 6[2] of Assam Fire Service Act, 1985, FM/66 Ranjan Kr. Nath is awarded 612 [six hundreds twelve] days L.W.P. for the period in judicial custody and suspension period w.e.f. 08.07.2017 to 11.03.2019 as it is treated as no work no pay. Hence D/P no. 06/2017 drawn up against FM/66 Ranjan Kr. Nath is hereby disposed off.

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He will draw regular salary with immediate effect. Now, he is transferred and posted to Chaygaon Fire & Emergency services station.”

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11.2. It is these two orders whereby the penalties had been imposed upon the two petitioners are put to challenge on a number of grounds.

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I have heard Mr. P. Mahanta, learned counsel for the petitioners and Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam for all the respondents.

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Page No.# 8/14

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Mr. Mahanta, learned counsel for the petitioners has submitted that the charges framed against the petitioners in the disciplinary proceedings were only with regard to the institution of the FIR in connection with the Garmur Police Station Case no. 36/2017 only, with the additional allegation against the second petitioner about his arrest in connection with the case. Any disciplinary proceeding so initiated, had to remain confined with the charge[s] only and neither the Enquiry Officer nor the Disciplinary Authority could have gone beyond the charge[s] framed against the petitioners. According to him, a perusal of the Enquiry Reports would amply indicate that the Enquiry Officer had only recorded the finding that the second petitioner was arrested in connection with Garmur Police Station Case no. 36/2017 and the Enquiry Report against the first petitioner had only indicated that the first petitioner was wanted in connection with Garmur Police Station Case no. 36/2017. As such, the question as to whether the period of any alleged unauthorized absence could not have been gone into in the absence of any definite charge in that regard. With the first petitioner being not charge-sheeted and with the acquittal of the second petitioner in connection with G.R. Case no. 115/2017, arising out of Garmur Police Station Case no. 36/2017, the entire foundation to initiate the disciplinary proceedings against the first petitioner and also against the second petitioner had stood removed and there could not have been any basis for the disciplinary proceedings, not to speak of abut imposition of penalties. It is further submitted him that the show cause notices were issued to the two petitioners specifically asking as to why any of the penalties prescribed in Rule 7 of the 1964 Rules and Section 6[2] of the AFS Act, 1985 should not be inflicted upon them. None of the penalties imposed upon the petitioners are specified in the 1964 Rules of the AFS Act, 1985 and as such, the impugned orders of penalty assailed herein, are liable to be set aside and quashed on that ground solely.

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Mr. Chutia, learned Additional Senior Government Advocate, Assam has submitted that the conditions of service of the two petitioners are governed by the AFS Act, 1985 as well as by the provisions of the 1964 Rules. The petitioners are members of the State Fire Service and under Section 6[2] of the AFS Act, 1985, the Director of Fire Service Force is empowered to award such penalties, as have been imposed by the two orders of penalties assailed herein. It is further submitted by him that if the petitioners are aggrieved by the two orders

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of penalties, the petitioners should have preferred statutory appeals under Rule 15 of the 1964 Rules r/w Section 14 of the AFS Act, 1985 and in view of the availability of alternative statutory remedy, this writ petition under Article 226 of the Constitution of India should not be entertained.

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I have duly considered the submissions of the learned counsel for the parties, more particularly, the contentions regarding the legality and validity of the two impugned orders whereby the two petitioners were awarded penalties in the form of Leave Without Pay [LWP], which are put to challenge. I have also perused the materials brought on record by the parties through their pleadings.

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In Rule 7 of the 1964 Rules the penalties that can be imposed after conclusion of the disciplinary proceeding following the procedure laid down in Rule 9 thereof, have been specified. Rule 7 of the 1964 Rules reads as under :

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“ Rule 7

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Nature of penalties :-

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The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely :-

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[i] Censure;

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[ii] Withholding of increments or promotion;

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[iii] recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders to the Government of Assam or the Central Government or any other State Government, or any local or other authority to whom services of a Government servant had been lent;

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[iv] reduction to a lower Service, grade or post, or to a lower time-scale, or to a lower stage in a time-scale;

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[v] compulsory retirement;

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[vi] removal from service which shall not be a disqualification for future employment;

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[vii] dismissal from service which shall ordinarily be a disqualification from future employment.

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Explanation :- The following shall not amount to a penalty within the meaning of this rule –

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[a] withholding of increments of a Government servant for failure to pass a departmental examination or successfully undergo training prescribed in accordance with the rules or orders governing the service or post or the terms of his appointment;

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[b] stoppage of a Government servant at any efficiency bar in the time-scale on the ground of his unfitness to cross the bar;

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[c] non-promotion whether in a substantive or officiating capacity of a Government servant, after due consideration of his case to a Service, grade or post for promotion to which he is eligible;

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[d] reversion to a lower Service, grade or post of a Government servant officiating in a higher Service, grade or post on the ground that he is considered, after trial, to be unsuitable for such higher Service, grade or post or on administrative grounds unconnected with his conduct;

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[e] reversion to his permanent Service, grade or post of a Government servant appointed on probation to another Service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation;

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[f] compulsory retirement of a Government servant after completion of 25 years qualifying service or 30 years qualifying service as the case may be under the provisions of Articles 103, 104 of the Assam Pension Manual and Rule 1[2] of Section I of the Assam Liberalised Pension Rules;

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[g] Termination of the Services –

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[i] of a Government servant appointed on probation, during or at the end of the period on probation, in accordance with the terms of his appointment or the rules and orders governing probation; or

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[ii] of a Government servant employed under an agreement in accordance with the terms of such agreement;

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[iii] of a Government servant whose term of appointment provides for the termination of service by either party giving notice for a specified period;

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[iv] of a Government servant in whose case the appointment is

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expressly stated to be on temporary basis and to have been sanctioned until further orders and it is also provided that his services may be terminated at any time without notice.”

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Section 6 of the AFS Act, 1985 has mentioned about appointment of members of the Force. For ready reference, Section 6 of the AFS Act, 1985 are extracted hereinunder.

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“ Appointment of members of the Force : -

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[1] The Director or such other officer of the force as the State Government may authorized in this behalf, shall appoint the members of the Assam Fire Service Force in accordance with the rules made under this Act.

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[2] Subject to the provisions of Article 311 of the Constitution of India and the rules prescribed by the State Government, the Director may, at any time, dismiss, suspend or reduce in rank or award any of the punishment to any member of the subordinate ranks whom he shall think responsible for remiss or negligence in the discharge of his duty or considered unfit for the same. The Director may also award any one or more punishment as provided in the Assam Service [Discipline and Appeal] Rules, 1964. The provision of the said rules shall apply, mutatis mutandis, with regard to procedure of awarding punishment and other disciplinary actions, provided that Inspector-General of Police, Assam, reserves the right to revision of hearing of appeal in case of natural injustice or fragrant irregularities in the case.”

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From perusal of the two impugned orders, it is apparent that the penalties have been imposed upon the petitioners in the form of Leave Without Pay [LWP], that is, for 631 days against the first petitioner and for 612 days against the second petitioner. A penalty in the form of Leave Without Pay [LWP] is not included amongst the penalties specified in Rule 7 of the 1964 Rules. Sub-section [2] of Section 6 has only provided that the Director may, at any time, dismiss, suspend or reduce in rank or award any of ‘the’ punishment to any member of the subordinate ranks whom he shall think responsible for remiss or negligence in the discharge of his duty or considered unfit for the same. It is further provided that the Director may also award any one or more punishment as provided in the Rules, 1964 and the provision of the Rules, 1964 shall apply, mutatis mutandis, with regard to procedure of awarding punishment and other disciplinary actions, provided that Inspector General of

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Police, Assam reserves the right to revision of hearing of appeal in case of natural injustice or fragrant irregularities in the case. The word, ‘the’ usually denotes one or more things already mentioned. It, thus, goes to show that the authority and jurisdiction of the Director is to award a penalty like dismissal, suspension or reduce in rank. The expression ‘award of any of the punishment’ could only relate to the penalty of dismissal, suspension or reduction in rank and not anything else. It cannot be envisaged that the Director as the authority empowered to inflict penalty, can inflict a penalty in any form or of any nature, other than the ones which are already specified.

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A submission is advanced by the learned State counsel that since a remedy by way of a statutory appeal being available to the petitioners, this Court should not entertain the two writ petitions filed under Article 226 of the Constitution of India. It is settled law that the High Court High Court may not entertain a writ petition under Article 226 of the Constitution of India on the ground of availability of an alternative remedy, but such rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies :- [i] where the writ petition seeks enforcement of any of the fundamental rights; [ii] where there is failure of principles of natural justice; or [iii] where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In this circumstances, an alternative remedy does not operate as a bar. [Ref : Whirpool Corporation vs. Registrar of Trade Marks, [1998] 8 SCC 1; Harbanslal Sahnia and another vs. Indian Oil Corporation Limited and others, [2003] 2 SCC 107; State of Himachal Pradesh vs. Gujarat Ambuja Cement Limited, [2005] 6 SCC 499; Sanjana M. Wig vs. Hindustan Petroleum Corporation Limited, [2005] 8 SCC 242; and M.P. State Agro Industries Development Corporation Limited and another vs. Jahan Khan, [2007] 10 SCC 88.]

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Reverting back to the facts of the cases, it has been aptly demonstrated that the show cause notices, which were served upon the petitioners providing that as to why any penalties prescribed in Rule 7 of the 1964, Rules should not be imposed upon them. By the impugned orders, the respondent no. 2 has passed the orders imposing penalties which have not been

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provided in Rule 7 of the 1964 Rules. In the absence of any such penalty provided in Rule 7 of the 1964 Rules, the respondent no. 2 could not have passed such orders of penalty of Leave Without Pay [LWP]. In the considered view of this Court, any decision on the two aspects - [i] regarding the pay and allowances to be paid to the Government servant for the period of suspension on re-instatement, and [ii] whether or not the said period shall be treated as a period spent on duty, can be taken only after an enquiry envisaged in the Fundamental Rule 54-B. In the absence of any penalty in the form of Leave Without Pay [LWP] specified in Rule 7 of the 1964 Rules, the disciplinary authority could not have assumed suo moto the authority and jurisdiction to impose a penalty which is otherwise not provided in the 1964 Rules or in the AFS Act, 1985. On this ground alone, without going into the other contentions advanced on behalf of the petitioners, this Court is of the clear view that both the orders of penalty imposed upon the first petitioner by F&ESO no. 729 dated 30.03.2019 and by F&ESO no. 515 dated 11.03.2019 against the second petitioner are not sustainable in law and the same are liable to be set aside. The same are accordingly set aside.

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The matters are now remitted back to the disciplinary authority to proceed from the stage prior to the order imposing the penalties. It is observed that while considering the matters of the two petitioners on the basis of the Enquiry Reports, the disciplinary authority should take into consideration the background situations which necessitated the suspensions of the petitioners, the factors like non-submission of charge-sheet against the first petitioner, acquittal of the second petitioner in the consequent trial after being charge-sheeted, etc. After such consideration, the disciplinary authority shall pass a final order separately in respect of the disciplinary proceedings drawn against the two petitioners. Taking into account the entire facts and circumstances of the cases, it is ordered that such speaking orders be passed within a period of 6 [six] weeks from the date of receipt of a certified copy of this order by the disciplinary authority from the petitioners. It is observed that this Court has confined its considerations only on the nature of penalties imposed by the two impugned orders and on the sustainability of the same and has not made any observations on any other aspects, including the sustainability of the charges framed against the two petitioners.

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With the observations made and the directions given above, the two writ petitions stand allowed to the extent indicated above. There shall, however, be no order as to cost.

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JUDGE

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Comparing Assistant

Utpal Das v. the State of Assam and 3 Ors.

Case brief

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Utpal Das v. the State of Assam and 3 Ors.

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