Allowed

Subha Ram Hazarika v. the State of Assam and 2 Ors.

Gauhati HC1 Sept 2022WP(C)/6854/2017

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition challenging a departmental appellate order that treated the petitioner's suspension period as dies-non. The court held that Fundamental Rule 54 requires an opportunity of personal hearing before such a determination, as the court cannot be said to be an unauthorized absence when suspension is imposed by the employer. The order provisionally set aside

What did the court decide?

The part of the appellate order treated as dies-non is set aside; fresh order after hearing within 3 months.

Subha Ram Hazarika Vs the State of Assam and… — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No.# 1/11

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GAHC010223322017

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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. 6854/2017

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Subha Ram Hazarika
S/o Late S.R. Hazarika
R/o Moukhati, P.O. Rangthali
P.S. Sadar, District – Nagaon
PIN 782101
.….……….Petitioner
- Versus -
1. The State of Assam
Represented by the Secretary to the Government of Assam,
Home Department, Dispur, Guwahati – 6
2. Deputy Inspector General of Police
Central Range, Assam, Diphu, PIN 782460
3. The Superintendent of Police, Nagaon
Assam, PIN 782460
……………….Respondents

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Advocates :

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For the Petitioner : Mr. R. Mazumdar, Advocate For the Respondents : Mr. J.K. Goswami, Addl. Senior Government Advocate, Assam

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Date of Hearing & Judgment : 01.09.2022

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BEFORE

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

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By invoking the extra-ordinary jurisdiction under Article 226 of the Constitution of India,

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the petitioner has preferred this writ petition assailing the action on the part of the

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respondent no. 2 as the appellate authority who by the impugned order dated 19.07.2017 has treated the petitioner’s period of absence from duty as dies-non.

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The facts which are not in dispute can be narrated, in brief, as follows :-

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2.1. The petitioner was inducted in the service of Assam Police on 01.08.1987. When he was in service in the year 2008, a crime case came to be registered against him on the basis of a First Information Report [FIR], lodged on 10.07.2008 before the Officer In-Charge, Nagaon Sadar Police Station. The said FIR was registered as Nagaon Police Station Case no. 711/2008 [corresponding G.R. Case no. 1357/2008], for the offence defined under Section 394, Indian Penal Code [IPC]. In the course of investigation of Nagaon Police Station Case no. 711/2008, the petitioner was arrested and at a later point of time, he was allowed to go on bail. After completion of investigation in connection with the said case, the Investigating Officer [I.O.] of the case submitted a charge sheet under Section 173[2], Code of Criminal Procedure [CrPC] against 3 [three] accused persons including the petitioner. One of the 3 [three] accused persons viz. Zakir Hussain was shown as an absconder in the charge sheet.

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2.2. In connection with the said incident, as alleged in the FIR, the disciplinary authority initiated a departmental proceeding vide D.P. no. 19/2008 against the petitioner who, at the relevant point of time, was serving as Head Constable in the D.E.F., Nagaon. During the course of the departmental proceeding, the Enquiry Officer appointed for the purpose, examined 5 [five] nos. of prosecution witnesses. In the course of the departmental proceeding, documentary evidence was also produced and considered. The petitioner was allowed to participate in the departmental proceeding by affording opportunity to examine the prosecution witnesses and controvert documentary evidence adduced on behalf of the prosecution in that connection. By taking into consideration the explanation provided by the petitioner as the charge sheeted employee, the Enquiry Officer submitted his Enquiry Report with a finding that there was involvement of the charge sheeted employee i.e. the petitioner in the crime. Upon consideration of the Enquiry Report submitted by the Enquiry Officer, the respondent no. 3 as the disciplinary authority, by his order dated 25.04.2009, had imposed the penalty of dismissal from service upon the petitioner. In the said order imposing penalty,

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the disciplinary authority had further observed that the period of suspension of the petitioner shall be treated as dies-non.

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2.3. The trial of G.R. Case no. 1357/2008 had, in the meantime, proceeded in the Court of the learned Chief Judicial Magistrate, Nagaon [‘the trial court’, for short]. During the course of the trial, the prosecution examined 15 [fifteen] nos. of witnesses where the petitioner standing as the accused, took the plea of total denial. After closure of prosecution evidence, the petitioner was examined under Section 313, CrPC. After conclusion of the trial, the learned trial court delivered its judgment in G.R. Case no. 1357/2008 on 04.04.2017 by holding that the prosecution had failed to establish the guilt of the accused persons who stood the trial, beyond all reasonable doubt. Consequently, the accused persons were acquitted of the charge under Section 394, IPC and were set at liberty.

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2.4. After his acquittal in G.R. Case no. 1357/2008 by the judgment and order dated 04.04.2017, the petitioner preferred an appeal before the appellate authority i.e. the respondent no. 2 on 29.05.2017 along with a copy of the judgment and order dated 04.04.2017 passed by the learned trial court against the order passed by the disciplinary authority imposing penalty of dismissal from service along with a prayer for his reinstatement in service. On receipt of the appeal, the appellate authority considered the order passed by the disciplinary authority whereby the penalty of dismissal was imposed as well as the judgment and order dated 04.04.2017 whereby the learned trial court had acquitted the petitioner from the charge of committing dacoity.

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2.5. Upon consideration of the materials placed before him, the respondent no. 2 as the appellate authority by the order dated 19.07.2017, giving due honour to the judgment of acquittal passed by the learned trial court, ordered reinstatement of the petitioner in service in the same rank and the disciplinary authority was directed the revoke the order of dismissal from the date of passing of the appellate order. In his appellate order dated 19.07.2017, the appellate authority had further observed that the petitioner shall be deemed to be in service with immediate effect but the period of his absence from duty would be treated as dies-non. It is that part of the order dated 19.07.2017 passed by the appellate authority wherein the

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period of the petitioner’s absence from duty was ordered to be treated as dies-non which has been assailed in this writ petition.

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I have heard Mr. R. Mazumdar, learned counsel for the petitioner and Mr. J.K. Goswami, learned Additional Senior Government Advocate, Assam for all the respondents.

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Mr. Mazumdar, learned counsel for the petitioner has submitted that it is Fundamental Rule [F.R.] 54 which would be applicable in the case in hand. The appellate authority was obligated to resort to the procedure prescribed in F.R. 54 before reaching a decision as regards the period of absence from duty. Since the mandatory procedure prescribed in F.R. 54 was not followed in the case in hand, the impugned part of the appellate order dated 19.07.2017 is liable to be set aside and quashed. In support and also for the concept of diesnon, he has referred to the decision in Smti Vijay Laxmi and Sri Kishan Chand vs. Union of India, reported in 2014 [1] GLR 175, wherein the decision of the Hon’ble Supreme Court of India in M. Gopalkrishna Naidu vs. State of Madhya Pradesh, reported in AIR 1968 SC 240, has also been referred to.

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Per contra, Mr. Goswami, learned Additional Senior Government Advocate, Assam has submitted that the appellate authority had not set aside the findings arrived at the departmental proceeding, D.P. no. 19/2008 in his appellate order but it was only in honour of the judgment and order delivered by the learned trial court the appellate authority had decided to reinstate the petitioner in service. Since from the date of suspension till the date of reinstatement the petitioner had not extended his service, the decision to treat the period of absence as the period not spent on duty is on the principle of no work no pay.

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I have duly considered the submissions of the learned counsel for the parties and have also perused the materials brought on record by the parties through their pleadings. I have also perused the contents of the judgment and order dated 04.04.2017 passed by the learned trial court, the order of the disciplinary authority dated 25.04.2009 and the order of the appellate authority dated 19.07.2017.

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Since the challenge herein is confined to that part of the appellate order wherein the petitioner’s absence from duty had been treated as dies-non, there is no necessity to go into any other aspect, save and except the issue involved with regard to the concept of dies-non and the contention regarding non-adherence to the procedure prescribed in F.R. 54.

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Having regard to the issue involved therein, it is evident that in a case of such nature it is F.R. 54 which would govern the issue regarding the pay and allowances to be paid to a Government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, and as to how the said period has to be treated.

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For ready reference, the provision of F.R. 54 is extracted herein in its entirety.

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Fundamental Rule 54 :-

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[1] When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order –

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[a] regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be;

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

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[2] Where the authority competent to order re-instatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of subrule [6], be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be :

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Provided that where such authority is of 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 giving him an

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opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of sub-rule [7], be paid for the period of such delay, only such amount [not being the whole] of such pay and allowances as it may determine.

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[3] In a case falling under sub-rule [2], the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.

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[4] In cases other than those covered by sub-rule [2], including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of Clause [1] or Clause [2] of Article 311 of the Constitution and no further inquiry is proposed to be held the Government servant shall, subject to the provisions of sub-rules [5] and [7], be paid such amount [not being the whole] of the pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, 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 on which the notice has been served] as may be specified in the notice.

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Provided that, if the Government servant so desires, such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the Government servant. [5] In a case falling under sub-rule [4], the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be treated so for any specified purpose :

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Provided that, if the Government servant so desires, such authority may direct that

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the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, 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 –

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[a] extraordinary leave in excess of three months in the case of temporary Government servant; and

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[b] leave of any kind in excess of five years in the case of permanent or quasipermanent Government servant.

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Note 2 – In the case falling under sub-rules [4] and [5] of F.R. 54 the competent authority may pay such proportion of such pay and allowances as is admissible under F.R. 53 read with sub-rule [7] of F.R. 54 with prior concurrence of Finance Department.

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[6] The payment of allowances under sub-rule [2] or sub-rule [4] shall be subject to all other conditions under which such allowances are admissible.

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[7] The proportion of the full pay and allowances determined under the proviso to subrule [2] or under sub-rule [4] shall not be less than the subsistence allowance and other allowances admissible under Rule 53.

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[8] Any payment made under this rule to Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the Government servant.

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From the provision of F.R. 54, it is evident that when the Government employee who was earlier dismissed, removed or compulsorily retired, is reinstated in service as a result of appeal or review, the authority competent to order reinstatement is required to consider and make a specific order [a] regarding the pay and allowances to be paid to the Government employee for the period of his absence from duty including the period of suspension proceeding his dismissal, removal or compulsory retirement, as the case may be; and [b]

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

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When the appellate authority reaches an opinion that the Government employee who was earlier dismissed, removed or compulsorily retired, has been fully exonerated, the Government employee shall be paid full pay and allowances to which he was entitled had he not been dismissed or removed or compulsorily retired or suspended prior to such dismissal or removal or compulsory retirement, as the case may be, subject to the other provisions laid down in the said rule. In case the appellate authority is of the opinion that the Government employee who was earlier dismissed, removed or compulsory retired, has not been fully exonerated, including where the order of dismissal, removal or compulsorily retirement from service is set aside by the appellate authority or reviewing authority solely on the ground of non-compliance of the requirement of Clause [2] of Article 311 of the Constitution of India and no further inquiry is proposed to be held, the Government employee shall, subject to the other provisions of the Rule, be paid such proportion of the full pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsory retired or suspended prior to such dismissal or removal or compulsory retired, as the case may be, as the competent authority may determine, after giving notice to the Government employee 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 which the notice has been served as may be specified in the notice.

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In service jurisprudence, to apply the concept of ‘dies-non’ it must be established that the absence from the duty by the employee was wilful and unauthorized. In case of suspension, the absence from active duty by the employee is not wilful or unauthorized but is a forced one, at the instance of the employer. During the period of suspension the employee is ordinarily paid subsistence allowance as per the rules, which is ordinarily lesser than the regular salary. In such situation, the concept of dies non is found to be not applicable in respect of the suspension [Ref : Smti. Vijay Laxmi and Sri Kishan Chand vs. Union of India, 2014 [1] GLR 175].

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Reverting back to the facts of the case, it is not in dispute that after registration of the

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crime case, the petitioner was arrested in connection with the said case. After his arrest, he was placed under suspension and thereafter, a departmental proceeding was initiated wherein the petitioner had participated. In the departmental proceeding, the Enquiry Officer in his Enquiry Report recorded a finding that the charge against the petitioner as the charge sheeted employee was duly proved. On the basis of the Enquiry Report submitted by the Enquiry Officer, the disciplinary authority had passed the order of penalty of dismissal against the petitioner. Subsequently in the trial of G.R. Case no. 1357/2008 the petitioner was acquitted of the charge for which he stood in the trial. When the appellate authority considered the appeal, the order of penalty of dismissal from service passed in the departmental proceeding was in force. In such obtaining fact situation, the petitioner’s absence from duty cannot be said to be wilful and unauthorized as it was at the instance of the employer.

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In M. Gopalkrishna Naidu vs. The State of Madhya Pradesh, reported in AIR 1968 SC 240, the provisions contained in F.R. 54, came to be considered. In sub-rule [3] of F.R. 54 considered therein it was provided that the Government servant shall be given such proportion of such pay and allowances as were admissible, where the authority competent to order reinstatement after the Government servant was dismissed, removed or suspended was of the view that that the Government servant had not been fully exonerated. F.R. 54[5] provided that in a case falling under F.R.54[3], period of absence from duty shall not be treated as a period spent on duty for all purposes. It is in the context of the said provision, the Hon’ble Supreme Court of India had observed as under :-

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“7. It is true as Mr. Sen pointed out that F.R. 54 does not in express terms lay down that the authority shall give to the employee concerned the opportunity to show cause before he passes the order. Even so, the question is whether the rule casts such a duty on the authority by implication. The order as to whether a given case falls under Cl. 2 or Cl. 5 of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and his forming the opinion therefrom of two factual findings whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified. Besides, an order passed under this rule would obviously affect the government

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servant adversely if it is one made under Cls. 3 and 5. Consideration under this rule depending as it does on facts and circumstances in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to the government servant must be held to be an objective rather than a subjective function. The very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action, proposed is not afforded, as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice.”

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The Hon’ble Supreme Court of India in Manzoor Ahmed Mazumdar, reported in [1997] 11 SCC 374, which is a case involving Assam Fundamental Rules, more particularly, F.R. 54[3] & F.R. 54[5] [as prevalent at that point of time], has reiterated the same principle in the following manner :-

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“4. In view of the decision in M. Gopalkrishna Naidu [supra] it must be held that even though there is no express requirement in Fundamental Rule 54[3] for giving an opportunity to the employee before passing an order, giving of such an opportunity is implicit in the exercise of the power which has been conferred by the said provision. It was, therefore, necessary for the competent authority to afford an opportunity to the appellant before passing the order regarding pay and allowances payable to the appellant in respect of the period of suspension [sic absence]. Since this was not done in the present case, the order dated 12.08.1982 cannot be upheld and has to be set aside. For the same reason the impugned judgment of the High Court has also to be set aside. It will be open to the respondents to pass a fresh order in accordance with law after affording an opportunity to the appellant.”

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From the principles enunciated in the above decisions and, more particularly, in view of the fact that F.R. 54[5] has provided specifically for notice, it is settled that there is a duty to hear the Government employee who has been reinstated in service after an order of dismissal or removal or compulsory retirement, under F.R. 54 before any order is passed covering the two aspects firstly, regarding the pay and allowances to be paid to the Government employee for the period of his absence from duty, and secondly, whether or not the said period shall be

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treated as a period spent on duty. It has been held that such an order passed under the F.R. 54 is not consequential order or a mere continuation of the departmental proceeding against the Government employee.

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Having considered the procedure laid down in F.R. 54 and the propositions laid down in the afore-mentioned decisions vis-à-vis the fact situation obtaining in the case, it is evident that the appellate authority before deciding to treat the period of the absence from service of the petitioner as dies-non, did not adhere to the procedure laid down in F.R. 54. Since the procedure laid down in F.R. 54 is not followed, this Court is of the unhesitant view that the impugned part of the order of the appellate authority dated 19.07.2017 wherein it was held that the period of petitioner’s absence from duty should be treated dies-non is liable to be set aside. It is accordingly set aside.

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Since F.R. 54 has cast a duty on the competent authority to afford a reasonable opportunity to the Government employee to show cause against the proposed action against him. Therefore, the competent authority is at liberty to consider the issue afresh after giving the petitioner a reasonable opportunity to show cause against the action proposed against him. After affording such opportunity to the petitioner, the competent authority may pass a fresh order in accordance with law. However, such exercise shall be undertaken and completed as expeditiously as possible, but within a limit of 3 [three] months from the date of submission of a certified copy of this order to him by the petitioner. The petitioner has to extend his assistance and cooperation in such exercise.

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With the observations made and the directions given above, the writ petition is allowed to the extent indicated. There shall, however, be no order as to costs.

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Comparing Assistant

Subha Ram Hazarika v. the State of Assam and 2 Ors.

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Subha Ram Hazarika v. the State of Assam and 2 Ors.

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