WP(C)/4026/2023 on 1 May, 2025

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May 6, 2025

109

Gauhati High Court

WP(C)/4026/2023 on 1 May, 2025

GAHC010030012022

IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT

WP(C) No. 1658/2022
&
WP(C) No. 4026/2023

A. WP(C) No. 1658/2022

Shri Takar Ete,
S/o Late Tatum Ete,
Resident of Village Abor Leku,
PS-Jonai, Dist.-Dhemaji, Assam.
......Petitioner.
-Versus-
1. The State of Assam,
Represented by the Principal Secretary to the Govt. of Assam,
Elementary Education Department,
Dispur, Guwahati-6.
2. The Director of Elementary Education,
Assam, Kahilipara, Guwahati-19.
3. The District Elementary Education Officer,
Dhemaji, Assam, Pin-787057.
4. The Deputy Inspector of Schools,
Jonai, District-Dhemaji, Assam.
......Respondents.

For the Petitioner : Mr. B. Sinha. ......Advocate.

For the Respondents : Mr. P.N. Sarma, SC. Edu. ......Advocate.

WP(C) 1658/2022 Page 1 of 50
WP(C) 4026/2023
B. WP(C) No. 4026/2023

For the Petitioner : Mr. B. Sinha. ......Advocate.

For the Respondents : Mr. P.N. Sarma, SC. Edu. ......Advocate.

BEFORE

HON'BLE MR. JUSTICE ROBIN PHUKAN

Date of Hearing : 19.02.2025, 10.03.2025, 19.03.2025 &
25.03.2025

Date of Judgment : 01.05.2025

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WP(C) 4026/2023
JUDGMENT AND ORDER

Heard Mr. B. Sinha, learned counsel for the petitioner and also
heard Mr. P.N. Sarma, learned standing counsel, Education (Elementary)
Department, appearing for the respondents.

2. By this common judgment and order it is proposed to dispose of
these two writ petitions, being WP(C) No. 1658/2022 and WP(C)
No.4026/2023, filed under Article 226 of the Constitution of India, as both
are concerning the same parties and the reliefs being sought for are also
related to each other.

3. In WP(C) No.1658/2022, the petitioner has prayed for issuing
direction to the respondent authorities for refixing his pay scale as
Assistant Teacher of L.P. School and also to direct the respondent
authorities to disburse and release the monthly salary w.e.f. 15.09.1994
to 13.08.2020 with interest @18% per annum.

3.1. In WP(C) No.4026/2023, the petitioner has prayed for setting aside
the order dated 12.05.2023 issued under Memo No.EHA-114/2018/257-A,
whereby the petitioner was dismissed from service and also to issue
direction to the respondent authorities to treat the period of suspension
w.e.f. 15.09.1994 to 13.08.2020 as the petition spent on duty.

Background Facts:-

4. The background facts leading to filing of the present writ petitions
are briefly stated as under:-

"The petitioner was appointed as primary school teacher at Rigbi
Government L.P. School, Jonai, Dhemaji, in the year 1988. After
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WP(C) 4026/2023
successful completion of his Basic Training Certificate Course in the
year 1989, his service was regularized on 10.01.1990. Thereafter,
due to his ailment, the petitioner could not attend his duties since
the month of September, 1993 for which he was placed under
suspension on 15.09.1994. Thereafter, no disciplinary proceeding
was initiated against him and he remained under suspension for a
period of almost 25 years.

Being left with no other option, the petitioner approached
this Court by filing a writ petition being WP(C) No.825/2016 for
reinstatement in his service. Thereafter, hearing both the parties,
this Court was pleased to dispose of the same vide order dated
12.12.2018, on the basis of the statement made by the learned
Standing Council for the Director of Elementary Education, Assam
that as per record the petitioner was never placed under
suspension. However, this Court had granted liberty to both the
parties to act against each other.

The petitioner then produced the order of this Court dated
12.12.2018, before the respondent authorities on 17.12.2018. But
he was not allowed to join his duties. Then the petitioner had filed
one application on 16.02.2019 to the Director of Elementary
Education, Assam. But the same also failed to evoke any response.

Then, again he approached this Court by filing another writ
petition, being WP(C) No.2352/2019 for appropriate relief. The said
writ petition was disposed of by this Court by setting aside the
suspension order dated 15.09.1994 and directed the respondent
authorities to reinstate the petitioner in service.

WP(C) 1658/2022 Page 4 of 50
WP(C) 4026/2023
The Deputy Secretary to the Govt. of Assam, Elementary
Education Department, vide letter dated 02.07.2019 under Memo
No. AEE(CC) 07/2019/10-A directed the Director of Elementary
Education, Assam, to reinstate the petitioner considering the length
of his suspension.

Thereafter, on 13.08.2020, the petitioner was reinstated in
his original post of Assistant Teacher at Rigbi Government L.P.
School, Jonai, Dhemaji. Consequent upon, the petitioner was
reinstated on 13.08.2020 as per order dated 13.08.2020 bearing
Memo No. EHA-114/2018/175, issued by the Director of
Elementary Education. But, vide another letter, dated 13.08.2020,
bearing Memo No. EHA-114/2018/176, the Director of Elementary
Education, Assam had issued first show cause notice to him. The
petitioner had accordingly filed his reply, which was forwarded by
the Deputy Inspector of Schools, Jonai on 19.08.2020, vide his
letter under Memo No. DIS/JNI/MISC/33/2020, to the Director of
Elementary Education, Assam.

Thereafter, the Director of Elementary Education, Assam
under Memo No. EHA-114/2018/196-A, intimated the
Commissioner and Secretary to the Government of Assam,
Elementary Education Department that the petitioner was re-
instated in his original post of Assistant Teacher at Rigbi
Government L.P. School and show cause notice was issued to the
petitioner.

Thereafter, the petitioner had filed an application for
payment of his monthly salary to the Deputy Inspector of Schools,
Jonai. Thereafter, the Deputy Inspector of Schools, Jonai had

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WP(C) 4026/2023
intimated the Director of Elementary Education, Assam that the
petitioner has been re-instated as per the order dated 13.08.2020,
under memo No. EHA-114/2018/175. Thereafter, the petitioner had
filed another petition to the Director of Elementary Education,
Assam for regularization of his services, through the Deputy
Inspector of Schools, Jonai.

Thereafter, the Joint Secretary, Elementary Education
Department, Government of Assam, under Memo No. AEE(CC)
07/2019/38-A, dated 08.03.2021 had requested the Director of
Elementary Education, Assam to take necessary action against the
petitioner as per Assam Services (Discipline & Appeal) Rules, 1964
read with Assam Civil Services (Conduct) Rules, 1965. Thereafter,
the Director Elementary Education, Assam vide Memo No. EHA-
114/2018/198-A had directed the District Elementary Education
Officer, Dhemaji to submit the draft charges and statement of
allegation in respect of the petitioner.

Thereafter, the Deputy Inspector of Schools, Jonai under
Memo No. DIS/JNI/Misc/33/2021/435 served show cause notice to
the petitioner under Rule-9 of the Assam Services (Discipline and
Appeal) Rules, 1964 read with Article 311 of the Constitution of
India. The petitioner then submitted his reply on 26.03.2021.

Thereafter, the Enquiry Officer( Block Elementary Education
Officer) Murkong Selek submitted Inquiry Report to the Deputy
Inspector of Schools, Jonai. Thereafter, a show cause notice was
issued to him by the District Elementary Education Officer, Dhemaji
and he submitted his reply.

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WP(C) 4026/2023
Thereafter, the Deputy Director, Elementary Education,
Assam directed the District Elementary Education Officer, Demaji
and the petitioner to remain present in his Office Chamber on
09.08.2021.

Finally, the respondent No.2 as per letter dated 28.09.2021
was pleased to communicate to the Principal Secretary to the
Government of Assam, Elementary Education Department
suggesting to treat the unauthorized absence w.e.f. 01.11.1993 to
14.09.1994 as „no work no pay‟ and thereafter, to regularize the
period of suspension w.e.f. 15.09.1994 to 13.08.2020 and to obtain
view of judicial department.

But, the salary and the subsistence allowance of the
petitioner was not paid. So, he again filed another writ petition
being WP(C) No.1658/2022 and during the pendency of the
aforementioned petition, the petitioner had retired from his service
on 30.04.2022, as In-charge Headmaster of Rigbi Government L.P.
School, Jonai.

And after his retirement, when the WP(C) No.1658/2022 was
pending, the impugned order dated 12.05.2023, was passed by the
Director of Elementary Education, Assam, dismissing the petitioner
from his service as per Rule 7 of the Assam Services (Discipline and
Appeal) Rules, 1964 on the basis of enquiry report submitted by
the DEEO, Dhemaji and treated the period of absence from duty
i.e. w.e.f. 01.11.1993 to 14.09.1994 and from the date of
suspension i.e. from 15.09.1994 to 13.08.2020, as „no work no
pay‟.

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WP(C) 4026/2023
Being aggrieved, the petitioner has approached this Court
again by filing another writ petition, being WP(C) No. No.4026/
2023, under Article 226 of the Constitution of India, praying for
setting aside the impugned order, dated 12.05.2023, issued under
Memo No.EHA-114/2018/257-A, whereby the petitioner was
dismissed from service and also to issue direction to the
respondent authorities to treat the period of suspension w.e.f.
15.09.1994 to 13.08.2020 as spent on duty.

5. The respondent No.2 has filed an affidavit-in-opposition wherein a
stand has been taken that though a direction was issued by this Court for
releasing the subsistence allowance of the petitioner vide order dated
13.03.2023, in WP(C) No.1658/2022, the petitioner could not furnish any
non-engagement certificate as per provision of FR-53(2) of FR & SR for
the aforementioned period, for which the amount could not be released.

5.1. It is also stated that the petitioner was initially appointed as
stipendiary teacher at fixed stipend of Rs.470/- per month, by the D.I. of
Schools, Jonai on 08.01.1988 and in terms of the aforementioned
appointment letter, the petitioner would be deputed to Junior Basic
Training and after completion of the training he will be given regular
scale of pay @ Rs.500-875/- per month and that the service of the
petitioner was regularized by the Block Elementary Education Officer,
Murkongselek. But, he is not the competent authority to regularize the
service and that the Director of Elementary Education is only competent
authority to regularize his service and that he remained absent from his
duties w.e.f. 01.11.1993 to 14.09.1994 without any intimation and the
School Management Committee has adopted one resolution on
14.09.1994 and communicated the D.I. of Schools, Jonai for taking
necessary action.
WP(C) 1658/2022 Page 8 of 50
WP(C) 4026/2023
5.2. Accordingly, he was placed under suspension on 15.09.1994 and
thereafter, the petitioner has submitted his written statement on
22.06.2020, before the Directorate Level Enquiry Committee, wherein it
has been stated that he could not submit medical leave application for
the aforementioned period of unauthorized absence due to
communication problem and that the District Elementary Education
Officer, Dhemaji, vide letter dated 03.04.2021, had forwarded the show-
cause reply of the petitioner, wherein he stated that due to his weak
health he could not attend the school and he had taken contradictory
stand for his absence in the school and that the District Elementary
Education Officer, Dhemaji has conducted one enquiry and submitted the
report on 01.04.2023.

5.3. Thereafter, two letters were issued to the petitioner enclosing the
copy of the enquiry report directing him to submit the reply within 7 days
and the enquiry report was duly received by the petitioner. But, no reply
has been received and on the basis of the enquiry report submitted by
the District Elementary Education Officer, Dhemaji, the petitioner was
dismissed from his service vide order dated 12.05.2023 and as he is
dismissed from service, he is not entitled to any relief and also the
subsistence allowance for non-furnishing the non-engagement certificate
under FR-53(2) of the FR & SR and therefore, it is contended to dismiss
these petitions.

Submissions:-

6. Mr. Sinha, learned counsel for the petitioner submits that the
suspension order dated 15.09.1994, was not furnished to the petitioner
and he received the same only on 12.12.2018, and thereafter, he
approached this Court by filing writ petition and on the basis of the order

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WP(C) 4026/2023
passed in the said writ petition, he was reinstated and he was not
informed about furnishing of non-engagement certificate under FR-54(b)
of the FR & SR. Mr. Sinha submits that the petitioner had retired from
service on 30.04.2022, and thereafter, also departmental proceeding
continued against him and he was not furnished with the list of witnesses
as contemplated in the Assam Service (Discipline and Appeal) Rules, 1964
and also not given any opportunity to contest the said departmental
proceeding and enquiry report was prepared behind his back and though
a copy of the same was furnished to him, only 3 days‟ time was given to
him and he could not furnish his reply within the aforementioned period
as he was not granted subsistence allowance also for which he could not
move to file the aforementioned reply and to circumvent the order passed
by this Court for releasing his subsistence allowance, the authority has
hurriedly conducted enquiry and failed to comply with Rule 9 of the
Assam Service (Discipline and Appeal) Rules, 1964 and the relevant rules
had not been complied with and as such, Mr. Sinha contended to set
aside the impugned dismissal order and to direct the respondent
authorities to release the service benefits to the petitioner, which he is
legally entitled to.

7. Per contra, Mr. Sarma, learned standing counsel for the Elementary
Education Department submits that the petitioner had failed to furnish
the non-engagement certificate for which the subsistence allowance could
not be released to him. However, to a pointed query of this Court, Mr.
Sarma admits that there is no record of informing the petitioner to furnish
the non-engagement certificate. Mr. Sharma also submits that for
unauthorized absence from the duty, disciplinary proceeding was started
against the petitioner and then enquiry was conducted and thereafter,
the petitioner was dismissed from service on 12.05.2023. Mr. Sharma

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WP(C) 4026/2023
further submits that the petitioner is not entitled to claim the arrear
salary and the subsistence allowance, in view of the decision of this Court
in the case of Harendra Chandra Nath & Ors. v. State of
Tripura & Ors., reported in 2013 (2) GLT 1094.

7.1. However, to a pointed query of this Court, Mr. Sarma fairly submits
that though there is record of furnishing the article of charges and the
statement of allegation, there is no record to show that list of witnesses
contemplated to examine in the departmental proceeding against the
petitioner was furnished to him. Further, to a pointed query of this Court,
Mr. Sarma submits that there is no record of examination of any
witnesses by the Enquiry Officer in the departmental proceeding.
However, Mr. Sarma submits that there is no infirmity in the enquiry
conducted against the petitioner and the enquiry report was duly
furnished to the petitioner on 24.04.2023, but the petitioner failed to
furnish any reply for which the respondent authorities has taken the
decision ex-parte and dismissed the petitioner from service and as such,
there is no illegality or infirmity in the impugned dismissal order requiring
any interference of this Court.

8. Having heard the submission of learned counsel for both the
parties, I have carefully gone through these petitions and the documents
placed on record and also perused the decision referred by learned
Advocates of both the parties and I find sufficient force in the submission
of Mr. Sinha, learned counsel for the petitioner.

Consideration:-

9. The basic fact herein these petitions are not disputed. The
petitioner was appointed as primary school teacher at Rigbi Government
L.P. School, Jonai, Dhemaji, in the year 1988. After successful completion

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of his Basic Training Certificate Course in the year 1989, his service was
regularized on 10.01.1990. However, the petitioner could not attend his
duties, since the month of September, 1993 for his ailment. He was
placed under suspension on 15.09.1994. Thereafter, no disciplinary
proceeding was initiated against him. He remained under suspension for
a period of almost 25 years. The petitioner then filed WP(C) No.825/2016
for reinstatement in his service. This Court had disposed of the same vide
order dated 12.12.2018, on the basis of submission made by the learned
Standing Council for the Director of Elementary Education, Assam that
the petitioner was never placed under suspension. But the petitioner was
never allowed to join his duties. The petitioner then filed one application
on 16.02.2019 to the Director of Elementary Education, Assam but he
received no response.

9.1. The petitioner then filed WP(C) No.2352/2019, for appropriate
relief, which was disposed of by this Court by setting aside the
suspension order dated 15.09.1994 and directed the respondent
authorities to reinstate the petitioner in service. Consequently, the
petitioner was re-instated on 13.08.2020. But, vide letter, dated
13.08.2020, under Memo No. EHA-114/2018/176, the Director,
Elementary Education, Assam had issued first show cause notice to him.
The petitioner had accordingly filed his reply. The petitioner had
approached the Deputy Inspector of Schools, Jonai for payment of his
salaries but the same was not paid. Thereafter, as per direction of the
Joint Secretary, Elementary Education Department, under Memo No.
AEE(CC) 07/2019/38-A, dated 08.03.2021 had asked the Director of
Elementary Education to take necessary action against the petitioner as
per Assam Services (Discipline & Appeal) Rules, 1964 read with Assam
Civil Services (Conduct) Rules, 1965. The Director then vide Memo No.

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WP(C) 4026/2023
EHA-114/2018/198-A had directed the District Elementary Education
Officer, Dhemaji to submit the draft charges and statement of allegation
in respect of the petitioner. Then the Deputy Inspector of Schools, Jonai
under Memo No. DIS/JNI/Misc/33/2021/435, had served show cause
notice to the petitioner under Rule-9 of the Assam Services (Discipline
and Appeal) Rules, 1964 read with Article 311 of the Constitution of
India. The petitioner then submitted his reply on 26.03.2021. Thereafter,
the Block Elementary Education Officer, Murkong Selek who was
appointed as Enquiry Officer, submitted Enquiry Report to the Deputy
Inspector of Schools, Jonai. Then the petitioner was served with a show
cause notice by the District Elementary Education Officer, Dhemaji and he
submitted his reply.

9.2. It is also not in dispute that the salary and the subsistence
allowance of the petitioner was not paid for which he again filed another
writ petition being WP(C) No.1658/2022 and during the pendency of the
aforementioned petition, the petitioner had retired from his service on
30.04.2022. Then after his retirement, when the WP(C) No.1658/2022
was pending, the impugned order dated 12.05.2023, was passed by the
Director of Elementary Education, Assam, dismissing the petitioner from
his service as per Rule 7 of the Assam Services (Discipline and Appeal)
Rules, 1964 on the basis of enquiry report submitted by the DEEO,
Dhemaji and treated the period of absence from duty i.e. from
01.11.1993 to 14.09.1994 and from the date of suspension i.e. from
15.09.1994 to 13.08.2020 treated as no work no pay.

10. Admittedly, the petitioner was placed on suspension vide order
dated 15.09.1994, for his unauthorized absence from duty since the
month of September, 1993. Said suspension order remained in force till
the same being set aside by this Court in WP(C) No.2352/2019, vide
WP(C) 1658/2022 Page 13 of 50
WP(C) 4026/2023
order dated 06.01.2020. Admittedly, the suspension order was not
followed by any departmental proceeding. He was re-instated only on
13.08.2020. Thereafter, show cause notice was issued to him on the
same day i.e. 13.08.2020, by the Director of Elementary Education,
Assam enclosing statement of allegation, however, without the list of
witnesses. Thus, formally the departmental proceeding appears to be
drawn up only on 13.08.2020, after delay of 25 years.

Delay and Its Consequence Upon Disciplinary Proceedings:-

11. Now, let it be seen the consequence of inordinate delay in initiation
of departmental proceeding. This issue was dealt with by Hon‟ble
Supreme Court in catena of decisions. The important decisions are being
discussed herein below.

11.1. In the case of State of U.P. & Anr. vs. Bani
Singh, reported in 1990 Supp SCC 738, Hon‟ble Supreme Court
has held as under:-

‚The irregularities which were the subject-matter of
the enquiry are said to have taken place between the
years 1975-77. It is not the case of the department
that they were not aware of the said irregularities,
if any, and came to know it only in 1987. According
to them even in April 1977 there was doubt about the
involvement of the officer in the said irregularities
and the investigations were going on since then. If
that is so, it is unreasonable to think that they
would have taken more than 12 years to initiate the
disciplinary proceedings as stated by the Tribunal.
There is no satisfactory explanation for the
inordinate delay in issuing the charge memo and we
are also of the view that it will be unfair to permit
the departmental enquiry to be proceeded with at this
stage. In any case there are no grounds to interfere

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with the Tribunal's orders and accordingly we dismiss
this appeal.‛

11.2. Thereafter, in the case of the State of A.P. vs. N.

Radhakishan, reported in (1998) 4 SCC 154, it has been held as under:-

‚19. It is not possible to lay down any
predetermined principles applicable to all cases and
in all situations where there is delay in concluding
the disciplinary proceedings. Whether on that ground
the disciplinary proceedings are to be terminated
each case has to be examined on the facts and
circumstances in that case. The essence of the matter
is that the court has to take into consideration all
the relevant factors and to balance and weigh them to
determine if it is in the interest of clean and
honest administration that the disciplinary
proceedings should be allowed to terminate after
delay particularly when the delay is abnormal and
there is no explanation for the delay. The delinquent
employee has a right that disciplinary proceedings
against him are concluded expeditiously and he is not
made to undergo mental agony and also monetary loss
when these are unnecessarily prolonged without any
fault on his part in delaying the proceedings. In
considering whether the delay has vitiated the
disciplinary proceedings the court has to consider
the nature of charge, its complexity and on what
account the delay has occurred. If the delay is
unexplained prejudice to the delinquent employee is
writ large on the face of it. It could also be seen
as to how much the disciplinary authority is serious
in pursuing the charges against its employee. It is
the basic principle of administrative justice that an
officer entrusted with a particular job has to
perform his duties honestly, efficiently and in
accordance with the rules. If he deviates from this
path he is to suffer a penalty prescribed. Normally,
disciplinary proceedings should be allowed to take

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their course as per relevant rules but then delay
defeats justice. Delay causes prejudice to the
charged officer unless it can be shown that he is to
blame for the delay or when there is proper
explanation for the delay in conducting the
disciplinary proceedings. Ultimately, the court is to
balance these two diverse considerations.‛

Thereafter, it has been held that -

‚There was hardly any explanation worth
consideration as to why the delay occurred. In the
circumstances, this Court held that the Tribunal was
justified in quashing the charge memo dated 31-7-1995
and directing the State to promote the respondent as
per recommendation of the DPC ignoring memos dated
27-10-1995 and 1-6-1996. Accordingly, the appeal
filed by the State of Andhra Pradesh was dismissed.‛

11.3. In the case of P.V. Mahadevan v. Managing Director, T.N.
Housing Board, reported in (2005) 6 SCC 636, Hon‟ble Supreme Court

has held as under:-
‚10. Section 118 specifically provides for submission
of the abstracts of the accounts at the end of every
year and Section 119 relates to annual audit of
accounts. These two statutory provisions have not
been complied with at all. In the instant case the
transaction took place in the year 1990. The
expenditure ought to have been considered in the
accounts of the succeeding year. In the instant case
the audit report was ultimately released in 1994-95.
The explanation offered for the delay in finalising
the audit account cannot stand scrutiny in view of
the above two provisions of the Tamil Nadu Act 17 of
1961. It is now stated that the appellant has retired
from service. There is also no acceptable explanation
on the side of the respondent explaining the
inordinate delay in initiating departmental
disciplinary proceedings. Mr. R. Venkataramani,
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learned Senior Counsel is appearing for the
respondent. His submission that the period from the
date of commission of the irregularities by the
appellant to the date on which it came to the
knowledge of the Housing Board cannot be reckoned for
the purpose of ascertaining whether there was any
delay on the part of the Board in initiating
disciplinary proceedings against the appellant has no
merit and force. The stand now taken by the
respondent in this Court in the counter-affidavit is
not convincing and is only an afterthought to give
some explanation for the delay.
11. Under the circumstances, we are of the
opinion that allowing the respondent to proceed
further with the departmental proceedings at this
distance of time will be very prejudicial to the
appellant. Keeping a higher government official under
charges of corruption and disputed integrity would
cause unbearable mental agony and distress to the
officer concerned. The protracted disciplinary
enquiry against a government employee should,
therefore, be avoided not only in the interests of
the government employee but in public interest and
also in the interests of inspiring confidence in the
minds of the government employees. At this stage, it
is necessary to draw the curtain and to put an end to
the enquiry. The appellant had already suffered
enough and more on account of the disciplinary
proceedings. As a matter of fact, the mental agony
and sufferings of the appellant due to the protracted
disciplinary proceedings would be much more than the
punishment. For the mistakes committed by the
department in the procedure for initiating the
disciplinary proceedings, the appellant should not be
made to suffer.
12. We, therefore, have no hesitation to quash
the charge memo issued against the appellant. The
appeal is allowed. The appellant will be entitled to
all the retiral benefits in accordance with law. The
retiral benefits shall be disbursed within three
months from this date. No costs.‛
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WP(C) 4026/2023
12. The legal proposition, that can be crystallized from the discussion
made herein above, is that

(i) There must be acceptable explanation on the side
of the authority, explaining the inordinate delay
in initiating departmental disciplinary
proceedings.

(ii) The protracted disciplinary enquiry against a
government employee should, be avoided not only in
the interests of the government employee but in
public interest and also in the interests of
inspiring confidence in the minds of the
government employees.

(iii) As a matter of fact, the mental agony and
sufferings of the employee due to the protracted
disciplinary proceedings would be much more than
the punishment.

(iv) For the mistakes committed by the department in
the procedure for initiating the disciplinary
proceedings, the employee should not be made to
suffer.

(v) Whether on that ground the disciplinary
proceedings are to be terminated, each case has to
be examined on the facts and circumstances in that
case.

(vi) The court has to take into consideration all the
relevant factors and to balance and weigh them to
determine if it is in the interest of clean and
honest administration that the disciplinary
proceedings should be allowed to terminate after
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delay particularly when the delay is abnormal and
there is no explanation for the delay.

(vii) The delinquent employee has a right that
disciplinary proceedings against him are concluded
expeditiously and he is not made to undergo mental
agony and also monetary loss when these are
unnecessarily prolonged without any fault on his
part in delaying the proceedings.

(viii) In considering whether the delay has vitiated the
disciplinary proceedings the court has to consider
the nature of charge, its complexity and on what
account the delay has occurred. If the delay is
unexplained prejudice to the delinquent employee
is writ large on the face of it.

(ix) It could also be seen as to how much the
disciplinary authority is serious in pursuing the
charges against its employee.

(x) Ultimately, the court is to balance these two
diverse considerations.‛

13. In the instant case, having gone through the affidavit in opposition,
this Court is unable to find any explanation, let alone a plausible one, for
inordinate delay of 25 years in initiating disciplinary proceeding against
him. As stated herein above, the petitioner was placed on suspension on
15.09.1994. Admittedly, the suspension order did not followed by any
departmental proceeding. The order of suspension was revoked as per
order of this Court in WP(C) No.2352/2019, vide order dated 06.01.2020.
He was re-instated only on 13.08.2020. Thereafter, show cause notice
was issued to him on the same day i.e. 13.08.2020. Thereafter,
proceeding was drawn up which culminated in passing of impugned order

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WP(C) 4026/2023
dated 12.05.2023, by which the petitioner was dismissed from his service
and treated the period of absence of duty, from 15.09.1994 to
13.08.2020 as no work no pay. For 25 long years the suspension order
was in force and no disciplinary proceeding was drawn up. The affidavit,
so filed by the respondent authority is hopelessly silent on this point, as
to what prevents them from initiating the proceeding against the
petitioner and why they slept over the matter for long 25 years and let
the petitioner suffer for his entire life. Thus, in the given facts and
circumstances, this Court is constrained to hold that delay of long 25
years in initiation of disciplinary proceeding against the petitioner caused
serious prejudice to him.

The Procedure, followed in Disciplinary Proceedings:-

14. The procedure to be followed in disciplinary proceedings is
generally laid down in Service Rules and Standing Orders made there
under. The petitioner herein was governed by the Assam Services
(Disciplinary and Appeal) Rules, 1964. But, the procedure, so laid down in
the said Rules, is subordinate to the provisions of the Constitution of
India and cannot be ultra-vires to the provisions of Article 310, 311 etc. It
is also well settled that the principles of natural justice has to be
followed. Thus, reasonable opportunity to defend him must be given to
the person against whom departmental proceedings have been initiated.

15. It also appears that Article 311(2) of the Constitution provides as
under:

(2) No such person as aforesaid shall be dismissed or removed
or reduced in rank except after an enquiry in which he has
been informed of the charges against him and given a

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WP(C) 4026/2023
reasonable opportunity of being heard in respect of those
charges.

16. Thus, this Article makes it obligatory to hold an inquiry before the
employee is dismissed or removed or reduced in rank. The Article,
however, cannot be construed to mean that it prevents or prohibits the
inquiry when punishment other than that of dismissal, removal or
reduction in rank is awarded. The procedure to be followed in awarding
other punishments is laid down in the service rules governing the
employee.

17. The procedure, being followed in the disciplinary proceeding
against a public servant, for imposing penalties, has to go through
various steps. From the Service Rules and from Office Memorandum
concerning the subject, following stages can be culled out:-

(i) Lodging of a complaint or making allegations of
misconduct against the Govt. servant;

(ii) Holding of preliminary enquiry;

(iii) Consideration of report of preliminary enquiry by the
disciplinary authority;

(iv) Show cause notice to the delinquent officials who is
prima-facie held to be responsible in the preliminary
enquiry;

(v) Reply of the employee to the show cause notice;

(vi) Issuance of charge sheet to the delinquent official, if
reply is considered unsatisfactory by the disciplinary
authority;

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(vii) Reply of the employee to the charge sheet. Scrutiny of
the reply by the disciplinary authority;

(viii) Appointment of Enquiry Officer i.e. order for regular
inquiry and nomination of presenting officer;

(ix) Legal assistance for defence;

(x) Attendance and examination of witnesses;

(xi) Submission of inquiry report by the Enquiry Officer;

(xii) Show cause notice to the delinquent employee;

(xiii) Submission of reply and consideration of the same along
with his past record;

(xiv) Penalty proposed;

(xv) Final order;

(xvi) Service appeal, if any;

Assam Services (Discipline and Appeal) Rules, 1964:-

17.1. The petitioner herein is governed by Assam Services (Discipline
and Appeal) Rules. Rule 9 of the Assam Services (Disciplinary and
Appeal) Rules, 1964, prescribed the procedure for imposing penalties.

9. Procedure for imposing penalties-

(1) Without prejudice to the provisions of the Public Servant (Inquiry) Act,
1850, no order imposing on a Government servant any of the penalties
specified in rule 7 shall be passed except after an inquiry, held as far
as may be in the manner hereinafter provided.
(2) The Disciplinary Authority shall frame definite charges on the basis of
the allegations on which the inquiry is proposed to be held. Such
charges, together with a statement of the allegations on which they are
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WP(C) 4026/2023
based, shall be communicated in writing to the Government servant,
and he shall be required to submit, within such time as may be
specified by the Disciplinary Authority, a written statement of his
defence and also to state whether he desires to be heard in person.
["At the time of delivering the charges, the Disciplinary
Authority shall invariably furnish to the Government servant a
list of documents and witnesses by which each article of charges is
proposed to be sustained."]
(3) The Government servant shall, for the purpose of preparing his defence,
be permitted to inspect and take extracts from such official records as
he may specify, provided that such permission may be refused if, for
reasons to be recorded in writing, in the opinion of the Disciplinary
Authority such records are not relevant for the purpose or it is against
the public interest to allow him access thereto:
Provided that when a Government servant is permitted to inspect
and take extracts from official records due case shall be taken against
tampering removal or destruction of records.
(4) On receipt of the written statement of defence, or if no such statement
is received within the time specified, the Disciplinary Authority may
itself inquiry into such of the charge as are not admitted or, if it
considers it necessary so to do, appoint for the purpose a Board of
inquiry or an Inquiring Officer.
(5) The Disciplinary Authority may nominate any person to present the
case in support of the charges before the Authority inquiring into the
charges (hereinafter referred to as the Inquiring Authority). The
Government servant may present his case with the assistance of any
other Government servant approved by the Disciplinary Authority, but
may not engage a legal practitioner for the purpose unless the person
nominated by the Disciplinary Authority as aforesaid is a legal

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WP(C) 4026/2023
practitioner or unless the Disciplinary Authority, having regard to the
circumstances of the case so permits.
(6) The Inquiring Authority shall, in the course of the inquiry consider such
documentary evidence and take such oral evidence as may be relevant
or material in regard to the charges. The Government servant shall be
entitled to cross-examine witnesses examined in support of the
charges and to give evidence in person, and to adduce documentary
and oral evidence in his defence. The person presenting the case in
support of the charges shall be entitled to cross-examine the
Government servant and the witnesses examined in his defence. If the
Inquiring Authority declines to examine any witness or to admit any
document in evidence on the ground that his evidence or such
document is not relevant or material, it shall record its reasons in
writing.
(7) At the conclusion of the inquiry, the Inquiring Authority shall prepare
a report of the inquiry, recording its findings on each of the charges
together with reasons thereof.
(8) The record of the inquiry shall include-
(i) the charges framed against the Government servant and the
statement of allegations furnished to him under sub-rule (2);
(ii) his written statement of defence, if any;
(iii) the oral evidence taken in the course of the inquiry;
(iv) the documentary evidence considered in the course of the
inquiry;
(v) the orders, if any, made by the Disciplinary Authority and the
Inquiring Authority in regard to the inquiry; and
(vi) A report setting out the findings on each charge and the
reasons therefore.

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(9) The Disciplinary Authority shall, if it is not the Inquiring Authority,
consider the record of the inquiry and record its finding on each
charge.
(10) Major Penalties - If the Disciplinary Authority having regard to its
findings on the charges and on the basis of evidence adduced during
the inquiry, is of the opinion that any of the penalties specified in
Clauses (iv) to (vii) of rule 7 should be imposed on the Government
servant it shall make an order imposing such penalty and it shall not
be necessary to give the Government servant any opportunity of
making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the
Commission the record of the inquiry shall be forwarded by the
Disciplinary authority to the Commission for its advice and such
advice shall be taken into consideration before making an order
imposing any such penalty on the Government servant.

The Impugned Dismissal Order:-

18. Now, let it be seen how, the respondent authority had conducted
the disciplinary proceeding against the petitioner. To appreciate the
contention of the parties, we deemed it appropriate to reproduce the
relevant portion of the impugned Order, dated 12.05.2023, as under:-

GOVERNMENT OF ASSAM
OFFICE OF THE DIRECTOR OF ELEMENTARY EDUCATION, ASSAM
KAHILIPARA, GUWAHATI-19

No. EHA-114/2018/257 Dated Kahilipara, the 12th May/2023

ORDER

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WP(C) 4026/2023
Perused: Perused the Hon’ble High Court order dtd. 06.01.2020 passed in
WP(C)No.2352/2019 titled Takar Ete-Vs-State of Assam & others wherein the
Hon’ble Court had observed that as the very appointment of the petitioner is
under question, this court is of the view that it is an aspect which can be decided
by the authorities in accordance with law.

Also Read:

(1) The enquiry report in connection with Departmental Proceeding drawn-

up against Sri Takar Ete, Retd. Asstt. Teacher of Rigbi Govt. L.P.
School under Dhemaji district as submitted by the DEEO, Dhemaji
vide her letter No. DEEO/DMJ/HC-70/2018/2189 dtd. 01.04.2023
alongwith the statement of allegation of charges formulated under the
said Departmental Proceeding and the reply of Sri Takar Ete to the
show cause notice.

(2) The statement submitted by the petitioner Sri Takar Ete at the time of
hearing in the office of the Director of Elementary Education, Assam
dtd.22.06.2020 and show cause reply submitted before the DEEO,
Dhemaji did. 01.07.2021.

(3) The letters issued to the petitioner vide this office letter No.EHA-

114/2018/252 dtd. 24.04.2023 and No.EHA-114/2018/253 dtd.
03.05.2023 for submission of written reply against the finding in the
enquiry report submitted by the DEEO, Dhemaji vide letter No.
DEEO/DMJ/HC-70/2018/2189 dtd. 01.04.2023 for finalization of
Departmental Proceeding.

(4) The Acknowledgement of this office letter No. EHA-114/2018/252 dtd.

24.04.2023 and No. EHA-114/2018/253 dtd. 03.05.2023 showing
receipt by Sri Takar Ete on 25.04.2023 and 10.05.2023.
(5) The Govt. letter issued to DEE, Assam vide No. AEE(CC)07/2019/93
dtd. 26.07.2022.

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WP(C) 4026/2023
Findings: In the show cause notice, 2(two) specific charges were levelled
against Sri Takar Ete. The Enquiry Officer i.e. Dy. Inspector of Schools, Jonai
and the Presenting Officer i.e. BEEO, Murkongselek had conducted the enquiry
fairly and in accordance with principles of natural justice.

The Enquiry Officer found all the charges formulated against Sri Takar
Ete as established beyond any doubt. It is seen from the enquiry report that Sri
Takar Ete, Retd. Asstt. Teacher of Rigbi Govt. L.P. School remained absent in
school from duty w.e.f. 01.11.1993 to 14.09.1994 at his own will and even he
had not felt the necessity for submission of any application seeking leave of
absence to the school authority or any immediate higher authority. This is also
reflected in the proceeding of Executive Meeting of the SMC of Rigbi Govt. L.P.
School dtd. 14.09.1994. The unauthorised absence in School of Takar Ete is
gross negligence of duty and responsibility and violation of conduct of service
rule.

It is also observed that show cause notice was served to Sri Takar Ete by
the Dy. Inspector of Schools, Jonai vide No. Misc/32/94/1004-05 dtd. 16.08.1994
for his unauthorized absence from duty as reflected in the suspension order
issued by the Dy. Inspector of Schools, Jonai vide order No. ATL/6/94/1204-07
dtd. 15.09.1994. But, Sri Takar Ete did not submit his reply to the show cause
notice served upon him. It seems a wilful and habitual negligence of duties on the
part of Sri Takar Ete. Sri Takar Ete is solely responsible for non-reporting for
duties and also for his absence from duties for the long period. It is observed that
Sri Takar Ete had approached the authority only in the year 2015 though he was
suspended in the year 1994.

It is also observed that Sri Takar Ete did not furnish any application
alongwith non-engagement certificate under provision of F.R. Rule 53(2) of
F.R.s & S.R.s for grant of subsistence allowances during suspension period.

Further, Director of Elementary Education, Assam has issued 2 (two)
letters to Sri Takar Ete vide No. EHA-114/2018/252 dtd. 24.04.2023 and No.
EHA-114/2018/253 dtd. 03.05.2023 enclosing the copy of enquiry report
WP(C) 1658/2022 Page 27 of 50
WP(C) 4026/2023
submitted by the DEEO, Dhemaji vide her letter No. DEEO/DMJ/HC-
70/2018/2189 dtd. 01.04.2023 to submit his written reply against the findings of
the enquiry report as to why the penalty prescribed in Assam Service (Discipline
& Appeal) Rule, 1964 should not be imposed upon him. Even in the last letter of
this office vide No. EHA-114/2018/253 dtd. 03.05.2023, the petitioner, Sri Takar
Ete was informed that if reply is not submitted within specified time period, ex-
parte decision will be taken in the matter. The aforesaid letters dtd. 24.04.2023
and 03.05.2023 were received by Sri Takar Ete on 25.04.2023 and 10.05.2023
respectively. But, so far no reply has been received from Takar Ete in defence.

It is also observed that, the Govt. had issued a letter to Director of
Elementary Education, Assam vide No. AEE(CC)07/2019/93 dtd. 26.07.2022,
wherein Govt, has directed that the Departmental Proceeding that has already
been initiated against Takar Ete should reach its logical conclusion and on the
outcome of the Departmental Proceeding, appropriate action may be taken
against Sri Takar Ete as per law.

Moreover, after examining the available records, it is also seen that Sri
Takar Ete had submitted two different written statement before the DEE, Assam
and the DEEO, Dhemaji. In the hearing conducted on 22.06.2020 in the office of
the DEE, Assam, Sri Takar Ete had submitted his written statement before the
authority wherein it is stated that he could not attend school from
November/1993 due to his physical illness. He could not submit medical leave
application to the Head Master of the school due to problem of communication.
He also stated that he could not submit his show cause reply served to him by the
then D.I.S, Jonai. On the other hand, in his reply submitted before the DEEO,
Dhemaji on 01.07.2021, Sri Takar Ete stated that he had submitted prayer
petition to the Dy. Inspector of Schools, Jonai through his family member
praying for leave on medical ground. Further, he stated that he was unknown
about any show cause notice served to him and no show cause notice was
received by him.

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WP(C) 4026/2023
From the above, it is revealed that both the statements of Sri Takar Ete is
contradictory in nature and he has tried to misguide the authority.

Further, it is seen that Sri Takar Ete has retired from service on attaining
the age of superannuation on 30.04.2022. However, the departmental proceeding
was initiated against Sri Tarak Ete during the period of his service and the same
has been continued after his retirement and as such the departmental proceeding
initiated against Sri Takar Ete is deemed to be a proceeding under Rule 21 of the
Assam Services (Pension) Rules, 1969.

Order: In view of the above, it is concluded that the petitioner, Sri Takar Ete,
Retd. Asstt. Teacher of Rigbi Govt. L.P. School has failed to give any
explanation against the finding of the enquiry. He was found absent without
leave, permission or authority from his duties w.e.f. 01.11.1993 to 14.09.1994
and without informing the school authority or any immediate higher authority.
The petitioner, Sri Takar Ete never approached before the authority from the date
of suspension upto the year 2015, even he never approached the higher authority
for his subsistence allowances during the suspension period by submitting
application along with non-engagement certificate as per F.R. Rules 53(2) of FRs
& S.R.s. Sri Takar Ete has also tried to misguide the authority by submitting
contradictory statement before two different higher authority once at the time of
hearing and previously while submitting his show cause reply. Hence, the
undersigned finds that Sri Takar Ete has committed acts of serious misconduct by
remaining absent without leave or authority and moreover, upon being given
opportunity to explain his conduct, he has tried to mislead the authorities.
Keeping in view the misconduct committed by Sri Takar Ete, Retd. Asstt.
Teacher of Rigbi Govt. L.P. School, he is hereby dismissed from service as per
Rule 7 of Assam Service (Discipline & Appeal) Rule, 1964. The period of his
unauthorised absence from duty i.e. on 01.11.1993 till the date he was placed
under suspension shall be treated as dies non. The period spent under suspension
by Sri Takar Ete shall be treated as such and he will not be entitled for any

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WP(C) 4026/2023
subsistence allowances during his suspension period in the absence of any claim
that he was not otherwise engaged during that period.

Sd/- Director,
Elementary Education, Assam, Kahilipara, Guwahati-19
Dated Kahilipara, the 12th May/2023

19. Indisputably, after the disciplinary proceeding initiated against the
petitioner, after his reinstatement in service pursuant to order of this
Court, and during the pendency of the said proceeding, the petitioner had
retired from service on 30.04.2022. Thereafter, the proceeding continued
against him under Rule 21 of the Assam Services (Pension) Rules, 1969.

20. It also appears that while initiating departmental proceeding, show-
cause notice was issued to him and the petitioner had submitted his
reply. Thereafter, having been not satisfied with the same, article of
charges and the statement of allegation was also furnished to him,
however, no list of witnesses was furnished to him. Further, it appears
from the impugned order, dated 12.05.2023 (Annexure-XXVII in WP(C)
No.4026/2023) and the relevant File of the Department, produced before
this Court by the learned standing counsel for the respondent authority
that no witnesses was examined in the proceeding and there is also no
record of participation of the petitioner in the departmental enquiry
proceeding. However, the Enquiry Report, so furnished by the Dy.
Inspector of Schools, Jonai (Enquiry Officer) (Annexure- XXIII in WP(C)
No.4026/2023) it had relied upon the statement of the petitioner herein
but it is not clear whether it was the verbal or written statement of the
petitioner. If it was the written statement, then it is certain that he had
not participated in the proceeding. There is also no indication in the
Enquiry Report that any document was exhibited by the Presenting

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WP(C) 4026/2023
Officer. That being so, the report was prepared ex-parte without giving
any opportunity of being heard to the petitioner.

21. Further, it appears from the letter dated 22.07.2021, of the Dy.
Director of Elementary Education, Assam (Annexure-XIX in WP(C)
No.4026/2023) that one Directorate Level Enquiry Committee was also
constituted and the said Committee has submitted a report after hearing
the matter in the office of the Dy. Director on 09.08.2021 and the
petitioner and District Elementary Education Officer, and the Dy.
Inspector of Schools, Dhemaji were directed to remain present in the
hearing. But, unfortunately, such an enquiry is not contemplated under
the Assam Services (Discipline and Appeal) Rules, 1964.

22. It also appears that the petitioner was furnished with a copy of the
said Enquiry Report vide letter dated 24.04.2023, and he was asked to
submit his written reply within seven days as to why the penalty
prescribed in Assam Services (Discipline and Appeal) Rules, 1964 on the
basis of the said Enquiry Report. Thereafter, on 3rd of May 2023 the
Director, Elementary Education had sent another letter to the petitioner
to submit his reply within three days. Then on 10.05.2023 the petitioner
had filed an application to the Director, Elementary Education for
extension of time of at least 10 days from 14.05.2023, to submit his reply
as he was suffering from chronic dysentery. But, no time was granted to
him and the impugned order was passed ex-parte on 12.05.2023,
dismissing the petitioner from service and also by holding that the period
under suspension shall be treated as dies non and he will not be entitled
to any subsistence allowance during the period of his suspension in the
absence of any claim that he was not otherwise engaged during that
period.

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WP(C) 4026/2023
Subsistence Allowance and the Rule and Precedents:-

23. As stated herein above for non-payment of the salary and the
subsistence allowance to the petitioner, after his re-instatement, he again
filed another writ petition being WP(C) No.1658/2022, wherein vide order
dated 13.03.2023, a co-ordinate bench of this Court was pleased to direct
the respondent authorities to pay the subsistence allowance to the
petitioner with effect from 15.09.1994 to 13.08.2020 within 45 days from
that day, however, the same was also not been paid to the petitioner.

24. And to circumvent the said order, dated 13.03.2023, the impugned
order dated 12.05.2023, was passed hurriedly even without taking note
of the fact that the petitioner hails from Jonai, a place located at a
distance of about 523/ km from Guwahati, where the Office of the
Director is located and he had already retired from service and not been
paid any pensionary benefit as well as subsistence allowance.

25. At this juncture, it is appropriate to discuss the principles laid down
by Hon‟ble Supreme Court in respect of the effect of non-payment of
subsistence allowance. It is well settled that an order of suspension never
puts an end to the service of an employee. He is only not entitled to the
salary but is eligible to get the subsistence allowance. In the case of Khem
Chand v. Union of India and Ors., reported
in MANU/SC/0408/1962, it has been held that the effect of an order of
suspension is that though the employee continues to be a member of the
service he is not permitted to work and is paid only subsistence allowance
which is less than his salary. This principle was reiterated in the case of
The State of Madhya Pradesh v. The State of Maharashtra and
Ors., reported in MANU/SC/0241/1977. It is also settled that
subsistence allowance is governed by the service rules. It has to be given

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WP(C) 4026/2023
to a suspended employee for his sustenance. It is in a way making a
provision for maintenance and survival. In O.P. Gupta v. Union of
India and Ors., reported in MANU/SC/0670/1987, it has been
stated that the very expression “subsistence allowance” has an
undeniable penal significance. It basically means-a means of supporting
life, especially a minimum livelihood. It has also been observed as under:-

‚It is a clear principle of natural justice that
the delinquent officer when placed under
suspension is entitled to represent that the
departmental proceedings should be concluded with
reasonable diligence and within a reasonable
period of time. If such a principle were not to
be recognized, it would imply that the Executive
is being vested with a totally arbitrary and
unfettered power of placing its officers under
disability and distress for an indefinite
duration.

25.1. In Fakirbhai Fulabhai Solanki v. Presiding Officer and
Anr. reported in AIR 1986 SC 1168, while dealing with the issue of
denial of subsistence allowance during a proceeding before an Industrial
Tribunal, Hon‟ble Supreme Court expressed that if no amount is paid
during the pendency of such an application it has to be held that the
workman concerned has been denied a reasonable opportunity to defend
himself in the proceedings before the Tribunal and such denial leads to
violation of principles of natural justice and consequently vitiates the
proceedings before the Tribunal under Sub-section (3) of Section 33 of
the Act and any decision given in those proceedings against the workman
concerned.

25.2. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.

and Anr., reported in AIR 1999 SC 1416, Hon‟ble Supreme Court has
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WP(C) 4026/2023
expressed the view that when on account of penury, occasioned by non-
payment of subsistence allowance an employee is not able to undertake a
journey to attend the disciplinary proceedings, the findings recorded by
the Inquiry Officer on such proceedings which are held ex-parte, stand
vitiated.

25.3. In Jagdamba Prasad Shukla v. State of U.P. and Ors.,
reported in AIR 2000 SC 2806, it has been held that the payment of
subsistence allowance, in accordance with the Rules, to an employee
under suspension is not a bounty. It is a right and if a suspended
employee is unable to appear for want of funds on account of non-
payment of subsistence allowance, it is a clear case of breach of
principles of natural justice on account of the denial of reasonable
opportunity to defend himself in the departmental enquiry and that
vitiates the departmental enquiry and the consequent order of removal
from service. It is seemly to state here that in the said case the employee
had intimated the authorities about the financial crunch.

25.4. It is however a fact that prejudice has to be pleaded and proved
and it is well settled that mere non-payment of subsistence allowance
cannot ipso facto be a ground to vitiate the proceedings in every case. It
has to be specifically pleaded and established as to in what way the
affected employee is handicapped because of non-receipt of subsistence
allowance. In the case in hand, the petitioner had instituted numbers of
writ petitions, being WP(C) No. 825/2016 and WP(C) No.2352/2019
seeking his reinstatement and salaries etc. In the present case, from the
facts discussed above it is clearly reveals that the subsistence allowance
was not paid during entire period covering 25 years and also the salary,
that was due to the petitioner was not paid after his reinstatement. The
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WP(C) 4026/2023
petitioner had submitted number of representations with regard to the
same, but the same failed to evoke any response. Thus, serious prejudice
was caused to the petitioner herein.

26. In this context reference to F.R. 53, which deals with subsistence
allowance is required to be made.

F.R. 53. (1), A Government servant under suspension or deemed to have been
placed under suspension by an order of the appointing authority shall be entitled
to the following payments, namely :–

(i) in the case of a Commissioned Officer of the Indian Medical Department
or a Warrant Officer in Civil employ who is liable to revert to Military
duty, the pay and allowances to which he would have been entitled had he
been suspended while in military employment;

(ii) in the case Of any other Government servant–

(a) a subsistence allowance at an amount equal to the leave salary which the
Government servant would have drawn if he had been on leave on half
average pay or on half pay and in addition, dearness allowance, if
admissible on the basis of such leave salary

Provided that where the period of suspension exceeds three
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 three
months as follows :

(i) the amount of subsistence allowance may be increased by a
suitable amount, not exceeding 50 percent of the subsistence
allowance admissible during the period of the first three
months, 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 Government servant;

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WP(C) 4026/2023

(ii) the amount of subsistence allowance may be reduced by a
suitable amount, not allowance admissible during the period of
the first three months, if, in the opinion of the said authority,
the period of suspension has been prolonged due to reasons, to
be recorded in writing, directly attributable to the Government
servant;

(iii) the rate of dearness allowance will be based on the increased
or, as the case may be the decreased amount of subsistence
allowance admissible under sub-clauses (i) and (ii) above.

(b) Any other compensatory allowances admissible from time to time on the
basis of pay of which the Government servant was in receipt on the date
of suspension subject to the fulfillment of other conditions laid down for
the drawal of such allowances.

(2) No payment under sub-rule (1) shall be made unless the Government
servant furnishes a certificate that he is not engaged in any other employ omit,
business, profession or vocation :

Provided that in the case of a Government servant dismissed,
removed or compulsorily retired from service, who is deemed to have
been placed or to continue to be under suspension from the date of
such dismissal or removal or compulsory retirement, under sub-rule (3)
or sub-rule (4) of Rule 12 of the Central Civil Services (Classification,
Control and Appeal) Rules, 1957, and who fails to produce such a
certificate for any period or periods during which he is deemed to be
placed or to continue to be under suspension, he shall be entitled to the
subsistence allowance and other allowances equal to the amount by
which his earnings during such period or periods, as the case may be,
short of the amount of subsistence allowance and other allowances that
would otherwise be admissible to him; where the subsistence allowance

WP(C) 1658/2022 Page 36 of 50
WP(C) 4026/2023
and other allowances admissible to him are equal to or less than the
amount earned by him, nothing in this proviso shall apply to him.

27. Besides, as discussed herein above, the list of witnesses have not
been furnished to the petitioner and no witnesses have been examined
and no documents, whatsoever, was exhibited to establish the charges.
Mr. P.N. Sharma, the learned standing counsel for the respondent, also
from the record produced before the Court could not show that the
petitioner had participated in the proceeding, and whether proper
opportunity was granted to the petitioner during the proceeding to
defend him.

28. Admittedly, however, the petitioner had received the Enquiry
Report along with two show cause notice as to why punishment
prescribed in the Assam Services (Discipline and Appeal) Rules, 1964 be
not inflicted upon him. But, he could not file his response on account of
his illness and he filed one application for extension of time to submit his
reply. But, the same failed to evoke any response and ultimately he was
dismissed vide impugned order dated 12.05.2023.

Dismissal & the Requirement of Compliance of the Principles of
Natural Justice:

29. It is not in dispute that the penalty of dismissal from service, so
imposed upon the petitioner, is a major penalty. Now, the question is,
whether imposing of such a penalty, after conducting the inquiry in such
a slipshod manner, as discussed herein above, without furnishing list of
witnesses and without examining any witness, without exhibiting any
documents, and without hearing him on the punishment proposed,
withstands the test of legality.

WP(C) 1658/2022 Page 37 of 50

WP(C) 4026/2023
29.1. To get this answer, we have to go over to the precedents. In the
case of Meenglas Tea Estate v. Workmen, reported in AIR 1963 SC
1719, Hon‟ble Supreme Court has observed as under :-

“It is an elementary principle that a person who is
required to answer a charge must know not only the
accusation but also the testimony by which the
accusation is supported. He must be given a fair
chance to hear the evidence in support of the
charge and to put such relevant questions by way of
cross-examination as he desires. Then he must be
given a chance to rebut the evidence led against
him. This is the barest requirement of an enquiry
of this character and its requirement must be
substantially fulfilled before the result of the
enquiry can be accepted.”

29.2. Again in the case of S. C. Cirotra vs. United Commercial
Bank, reported in MANU/SC/1164/1995, the Supreme Court had set
aside a dismissal order which was passed without giving the employee an
opportunity of cross-examination of the witnesses.

29.3. In the case of the State of U. P. vs. C. S. Sharma, reported
in AIR 1968 SC. 158, Hon‟ble Supreme Court has held that omission to
give opportunity to the Officer to produce his witnesses and lead
evidence in his defence vitiates the proceedings. The Court also held that
in the enquiry, witnesses have to be examined in support of the
allegations, and opportunity has to be given to the delinquent to cross-
examine these witnesses and to lead evidence in his defence.

29.4. In the case of Punjab National Bank vs. AIPNBE
Federation., reported in AIR 1960 SC 160 (vide para 66), Hon‟ble

WP(C) 1658/2022 Page 38 of 50
WP(C) 4026/2023
Supreme Court held that in such enquiries evidence must be recorded in
the presence of the charge-sheeted employee and he must be given an
opportunity to rebut the said evidence. The same view was taken in
A.C.C. Ltd. v. Their Workmen, reported in MANU/SC/0159/1963,
and in Tata Oil Mills Co. Ltd. v. Their Workmen, reported in
1963 II LLJ 78, also.

29.5. Even if the employee refuses to participate in the enquiry, the
employer cannot straight away dismiss him, but he must hold an ex-parte
enquiry, where evidence must be lead, as held by Hon‟ble Supreme Court
in the case of Imperial Tobacco Co, Ltd. vs. Its workmen,
reported in AIR 1962 SC 1348, and in Uma Shanker vs.
Registrar, reported in 1992 (651) FLR 674.

29.6. It is needless to emphasize that a dismissal order has serious
consequences and it should be passed only after complying with the rules
of natural justice. Since in the present case, the enquiry was conducted
defying the procedure, as contemplated under the Rules, and no
evidence was lead in the presence of the petitioner, nor was he given
opportunity to cross-examine the witnesses against him or lead his own
evidence, nor any documents being exhibited in support of the charge,
simply on the basis of the alleged statement of the petitioner, the
impugned dismissal order, dated 12.05.2023, was passed and as such,
to the considered opinion of this Court, and in view of the precedents
discussed herein above, the same fails to withstand the legal scrutiny and
therefore, the same is liable to be set aside and quashed.

The Principle of No. Work and No Pay and It’s Application:-

WP(C) 1658/2022 Page 39 of 50

WP(C) 4026/2023

30. In the case in hand, in the impugned dismissal order dated
12.05.2023, issued under Memo No. EHA-114/2018/257-A, the
respondent authority had applied the principle of “no work no pay” to
deny not only the salary during the period of suspension but also the
subsistence allowance for the said period. This principle is found in
proviso to F.R. 17(1), which read as under:-

“F.R. 17. (1) Subject to any exceptions specifically made in these rules an
officer shall begin to draw the pay and allowances attached to his tenure of a
post with effect from the date when he assumes the duties of that post, and shall
cease to draw them as soon as he ceases to discharge those duties:

Provided that an officer who is absent from duty unauthorisedly shall not
be entitled to any pay and allowances during the period of such absence.”

30.1. Now, what left to be seen is whether, in fact, this principle is
applicable in the case in hand or not. The issue of application of this
principle has been dealt with by Hon‟ble Supreme Court in plethora of
decisions, and at this juncture this Court deemed it proper to discuss
some of them to decide the controversy at hand with precision.

30.2. In the case of Commr., Karnataka Housing Board v. C.
Muddaiah, reported in (2007) 7 SCC 689, Hon‟ble Supreme Court has
held as under:-

‚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
WP(C) 1658/2022 Page 40 of 50
WP(C) 4026/2023
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 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.‛

30.3. In the case of J. N. Srivastava v. Union of India &
Anr. reported in (1998) 9 SCC 559, Hon‟ble Supreme Court has held
as under:-

‚3. The short question is whether the appellant
was entitled to withdraw his voluntary retirement
notice of three months submitted by him on 3-10-
1989 which was to come into effect from 31-1-
1990. It is true that this proposal was accepted
by the authorities on 2-11-1989. But, thereafter
before 31-1-1990 was reached, the appellant wrote
a letter to withdraw his voluntary retirement
proposal. This letter is dated 11-12-1989. The
said request permitting him to withdraw the
voluntary retirement proposal was not accepted by
the respondents by communication dated 26-12-
1989. The appellant, therefore, went to the
Tribunal but the Tribunal gave him no relief and
took the view that the voluntary retirement had
come into force on 31-1-1990 and the appellant
had given up the charge of the post as per his
memo relinquishing the charge and consequently,
he was estopped from withdrawing his voluntary
retirement notice. In our view the said reasoning
of the Tribunal cannot be sustained on the facts

WP(C) 1658/2022 Page 41 of 50
WP(C) 4026/2023
of the case. It is now well settled that even if
the voluntary retirement notice is moved by an
employee and gets accepted by the authority
within the time fixed, before the date of
retirement is reached, the employee has locus
poenitentiae to withdraw the proposal for
voluntary retirement. The said view has been
taken by a Bench of this Court in the case
of Balram Gupta v. Union of India [1987 Supp SCC
228]. In view of the aforesaid decision of this
Court it cannot be said that the appellant had no
locus standi to withdraw his proposal for
voluntary retirement before 31-1-1990. It is to
be noted that once the request for cancellation
of voluntary retirement was rejected by the
authority concerned on 26-12-1989 and when the
retirement came into effect on 31-1-1990 the
appellant had no choice but to give up the charge
of the post to avoid unnecessary complications.
He, however, approached the Tribunal with the
main grievance centering round the rejection of
his request for withdrawal of the voluntary
retirement proposal. The Tribunal, therefore,
following the decision of this Court ought to
have granted him the relief. We accordingly,
allow these appeals and set aside the orders of
the Tribunal as well as the order of the
authorities dated 26-12-1989 and directed the
respondents to treat the appellant to have
validly withdrawn his proposal for voluntary
retirement with effect from 31-1-1990. The net
result of this order is that the appellant will
have to be treated to be in service till the date
of his superannuation which is said to be
somewhere in 1994 when he completed 58 years of
age. The respondent-authorities will have to make
good to the appellant all monetary benefits by
treating him to have continuously worked till the
WP(C) 1658/2022 Page 42 of 50
WP(C) 4026/2023
date of his actual superannuation in 1994. This
entitles him to get all arrears of salary and
other emoluments including increments and to get
his pensionary benefits refixed accordingly.
However, this will have to be subject to
adjustment of any pension amount and other
retirement benefits already paid to the appellant
in the meantime up to the date of his actual
superannuation. It was submitted by learned
Senior Counsel for the respondent-authorities
that no back salary should be allowed to the
appellant as the appellant did not work and
therefore, on the principle of ‚no work, no pay‛,
this amount should not be given to the appellant.
This submission of learned Senior Counsel does
not bear scrutiny as the appellant was always
ready and willing to work, but the respondents
did not allow him to work after 31-1-1990. The
respondents are directed to make available all
the requisite monetary benefits to the appellant
as per the present order within a period of 8
weeks on the receipt of copy of this order at
their end. Office shall send the same to the
respondents at the earliest.

30.4. In case of Union of India vs. K.V. Jankiraman, reported
in (1991) AIR (SCW) 2276, Hon’ble Supreme Court has held as
under:-

‚25. We are not much impressed by the contentions
advanced on behalf of the authorities. The normal
rule of ‚no work no pay‛ is not applicable to
cases such as the present one where the employee
although he is willing to work is kept away from
work by the authorities for no fault of his. This
is not a case where the employee remains away
from work for his own reasons, although the work

WP(C) 1658/2022 Page 43 of 50
WP(C) 4026/2023
is offered to him. It is for this reason that
F.R. 17(1) will also be inapplicable to such
cases.‛

31. The legal proposition, that can be crystallized from the aforesaid
decision is that the principle „No work, no pay’ is applicable only when
an employee is absent due to his own act or omission/fault. But, when
the employee is kept away from the work by an act or omission on the
part of the employer, the employee cannot be denied salary on the
principle of ‘No Work No Pay’.

31.1. In the case in hand, from the pleading in WP(C) No. 4026/2023,
specially in para No.5, 6, 7, 8, 9, 10 and 11, it becomes apparent that
the petitioner suffered from serious illness, for which he could not attend
duties for some days, in the month of September, 1993. After his
recovery he went to resume his duty and also filed leave application, with
medical certificate, before the Head Master of the School. But, the Head
Master informed him that he was placed under suspension. However, said
suspension order could not be produced before him. It is also stated
thereafter, on several occasions, he had visited the Office of the Deputy
Inspector of Schools, Jonai and also the Office of the Block Elementary
Education Officer, Jonai, but on each occasion the authority denied to
provide any information or a copy of the suspension order to him on this
or that pretext. And he was not allowed to join in service.

31.2. Later on, he was informed that the post, in which he was
appointed was filled up by another person, and therefore, he is no longer
in service. Thereafter, he did run from pillar to post and visited several
authorities, on various occasion, but, the same failed to yield any result.
Thereafter, with the help of one Non-Governmental Organization, in the

WP(C) 1658/2022 Page 44 of 50
WP(C) 4026/2023
name and style of Gonotrantrik Nagarik Suroksha Moncha (GNSM) one
application was filed under the Right to Information (RTI) Act before the
Deputy Inspector of Schools, Jonai and only then, vide his letter, dated
21.09.2015 (Annexure-IV in WP(C) No.4026/2023), it was informed him
that he was placed under suspension. Then he filed another
representation (Annexure-V in WP(C) No.4026/2023) before the Deputy
Inspector of Schools, Jonai on 01.10.2015, for reinstatement in service,
but the same failed to evoke any response. And being left with no other
option, he preferred WP(C) No. 825/2016.

31.3. The respondent No.2, in her affidavit-in-opposition filed in WP(C)
No.4026/2023, neither denied nor admitted the aforesaid statement and
averment of the petitioner and the documents referred by him in para
No.5, 6, 7, 8, 9, 10 and 11. Rather, in para No. 6 of the affidavit,
respondent No.2 had stated that she had no comment to made in respect
of the para No. 1,2,7, to 11,14,15, 24, 25, 35 to 38.

31.4. Thus, the uncontroverted statement and averment made by the
petitioner in para No.5, 6, 7, 8, 9, 10 and 11, in WP(C) No. 4026/2023,
goes a long way to show that the petitioner had been kept away from the
work by an act or omission on the part of the respondent authorities.
Though he could not attend his duty on account of serious ailment in the
month of September, 1993, after his recovery, he went to resume his
duty and filed leave application with medical certificate before the Head
Master of the School, and he was informed that he was placed under
suspension but the suspension order was not furnished to him.

31.5. Thus, it was the fault/omission on the part of the respondent
authorities, for which the petitioner could not join in service, after his
recovery from ailment. His willingness to attend the duty is writ large

WP(C) 1658/2022 Page 45 of 50
WP(C) 4026/2023
from his conduct. That being so, and drawing premises from the decision
of Hon‟ble Supreme Court, and as discussed in the foregoing para, it can
logically be concluded that the petitioner cannot be denied salary on the
principle of „No Work No Pay’.

32. To recapitulate, on the following grounds the impugned
termination order, dated 12.05.2023, issued under Memo No.EHA-
114/2018/257-A, is liable to be interfered with:-

(i) There was inordinate delay in initiating the disciplinary
proceeding against the petitioner;

(ii) The petitioner was not paid subsistence allowance during the
entire suspension period for which the petitioner could not
properly defend himself in the disciplinary proceeding;

(iii) The disciplinary proceeding was conducted in slipshod
manner;

(iv) The petitioner was not furnished with the list of witnesses
and no witnesses have been examined and no documents,
whatsoever, was exhibited to establish the charge. The
learned standing counsel for the respondent, also from the
record he has produced before the Court, could not show
that the petitioner had participated in the proceeding, and
whether proper opportunity was granted to the petitioner
during the proceeding so as to defend himself;

(v) Before passing the impugned dismissal order dated
12.05.2023, the petitioner was admittedly not heard by the
respondent No.2. The petitioner though made a request to

WP(C) 1658/2022 Page 46 of 50
WP(C) 4026/2023
extend time to file his response on account of his illness by
filing an application, but the same was denied;

33. Accordingly, these writ petitions are allowed granting following
relief(s) to the petitioner:-

(i) The impugned termination order dated 12.05.2023, issued under
Memo No.EHA-114/2018/257-A, stands set aside and quashed;

(ii) The period of suspension, i.e. from 15.09.1994 till 13.08.2020, shall
be treated as on duty and he shall be paid full salary for the same,
as the principle of ‘No Work, No Pay,‟ is already held to be
inapplicable in the given facts and circumstances of the case;

(iii) The period of alleged unauthorized absence from 01.11.1993 till
14.09.1994, on account of his illness and for which he had filed an
application with medical certificate, shall be regularized by
granting/adjusting the kind of leave due to him and he shall be
paid the salary, due to him, for the said period.

(iv) As the petitioner shall be paid full salary from the date of his
suspension till his reinstatement, there is requirement of payment
of subsistence allowance and the prayer of the petitioner in this
regard stands mitigated;

(v) Further, the respondent authorities shall pay full salary to the
petitioner from the date of his reinstatement i.e. 13.08.2020, till his
retirement on 30.04.2022, if not paid earlier;

(vi) The respondent authority shall grant all the pensionary benefits to
the petitioner, to which he is legally entitled to.

(vii) And this exercise has to be carried out with in a period of three
months from the date of receipt of certified copy of this judgment

WP(C) 1658/2022 Page 47 of 50
WP(C) 4026/2023
and order. The petitioner shall obtain a certified copy of this order
and place the same before the respondent No. 2 within one week
from today.

(viii) Since the petitioner was compelled by the respondent authorities to
approach this Court repeatedly, the respondent authority, specially,
respondent No.2 shall pay a sum of Rs.50,000/ as cost to the
petitioner within the stipulated period.

(ix) The Commissioner and Secretary, School Education Department
shall conduct an enquiry as to how the petitioner remained on
suspension for a period of 25 years and shall thereafter, take
remedial measures so that no one suffer prejudice in the hands of
some unscrupulous officials of the department.

34. Now, let it be seen whether the petitioner is entitled to any other
equitable relief. It is apparent from the facts and circumstances discussed
herein above that the petitioner had retired from service on 30.04.2022.
He was placed under suspension on 15.09.1994. Thereafter, for the
act/omission of the respondent authorities, no disciplinary proceeding
was drawn up against him till 13.08.2020, for long 25 years. Even he was
not furnished with the suspension order. He did run from pillar to post for
resuming duties and for his salary and subsistence allowance. The
respondent authorities paid no heed to same. Being left with no option,
he approached this Court by filing WP(C) No.825/2016, for his
reinstatement in his service, which was disposed of vide order dated
12.12.2018, on the basis of the statement made by the learned Standing
Council for the Director Elementary Education, Assam that as per record
the petitioner was never placed under suspension. The respondent
authority themselves not aware of their own order of suspension of the

WP(C) 1658/2022 Page 48 of 50
WP(C) 4026/2023
petitioner, that was passed long back on 15.09.1994. Despite intervention
of this Court, in number of writ petitions, filed by the petitioner, he was
not paid subsistence allowance not to speak of the salaries. Disciplinary
proceeding was conducted in a slipshod manner and by an apparent
illegal order, dated 12.05.2023, he was dismissed from service. The order
of this Court for payment of subsistence allowances to the petitioner also
stands circumvented. This callousness and high handedness of the
respondent authorities made the petitioner to suffer till his retirement on
30.04.2022, since the date of his suspension. His human rights, his
fundamental rights and all other rights stands violated in the hand of the
state respondents.

35. Thus, this Court is of the considered opinion that a valuable right is
accrued upon the petitioner to get interest upon his unpaid salaries and
pensionary benefits. On equitable consideration also the petitioner is
entitled to interest upon the salaries, which he is entitled to, since the
date of his suspension i.e. since 15.09.1994, till his retirement on
30.04.2022. It is worth mentioning here in this context that pension and
gratuity are not bounty to be distributed by Government to its employees
on their retirement, but are valuable rights and property in its hands and
any culpable delay in settlement and disbursement thereof is to be visited
with penalty of payment of interest.

36. In the given facts and circumstances and also drawing premises
from a decision of Hon‟ble Supreme Court in the case of Union of
India & Ors v. Dr. J.K Goel, reported in 1995 SCC Supl. (3)
161, this court is constrained to grant interest upon the salaries of the
petitioner @ 6% since 15.09.1994, till payment of the said amount and
also upon the other pensionary benefits, which the petitioner is legally

WP(C) 1658/2022 Page 49 of 50
WP(C) 4026/2023
entitled to @ 6% since the date of his retirement till the date of payment
of the same.

Sd/- Robin Phukan
JUDGE

Comparing Assistant

WP(C) 1658/2022 Page 50 of 50
WP(C) 4026/2023

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