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2002 DIGILAW 107 (GAU)

S. Sarkar v. State of Assam

2002-03-05

I.A.ANSARI, R.S.MONGIA

body2002
R.S. MONGIA, CJ. — The appellant-writ petitioner, who was working as a Constable in the Assam Police Task Force, was placed under suspension by the order dated 2.2.94. The order of suspension reads as under:- “Constable 244 Sadhan Sarkar is placed under suspension with effect from this afternoon i.e. 31.1.94 for creating the situation at this H.Q. under influence of liquor. Further action will be initiated while normal office will function after the holiday.” 2. By the order dated 26.2.94, he was discharged from service by dispensing with enquiry under Article 311 (2)(b) of the Constitution of India. The reason given for not holding the departmental enquiry was, “His continuance in the force will not only effect drill and discipline of the entire personnel of this Unit HQ but also effect the security arrangements made locally for the Unit Megazine and the Unit HQ Campus.” In the impugned order of discharge certain alleged misconduct on the part of the writ petitioner were highlighted. The order of discharge was challenged by way of Writ Petition No. 5509/97. The learned Single Judge was of the view that no reasons had been given for dispensing with the enquiry under Article 31 l(2)(b) which are germane to the non-holding of the enquiry, i.e., that holding of the enquiry is not reasonably practicable. While allowing the writ petition and quashing the order of discharge, the learned Judge observed, “The petitioner would not be entitled to any backwages in view of the conduct reflected in the order of dismissal.” 3. The present appeal has been filed that in fact there was no reason to withhold the backwages as the impugned order of discharge has been quashed and the petitioner should be deemed to be in duty for all intents and purposes including pay. It was further submitted that the observation of the learned Single Judge that the backwages were being withheld because of the conduct reflected in the order of dismissal would cast aspersion against the writ petitioner. 4. We have heard Mr A.R. Banerjee, learned counsel for the appellant and Mrs. A. Hazarika, learned Addl. Sr. Govt. Adv., Assam. 5. It was further submitted that the observation of the learned Single Judge that the backwages were being withheld because of the conduct reflected in the order of dismissal would cast aspersion against the writ petitioner. 4. We have heard Mr A.R. Banerjee, learned counsel for the appellant and Mrs. A. Hazarika, learned Addl. Sr. Govt. Adv., Assam. 5. The appellant (petitioner) had not worked from the date of his discharge till the writ petition was allowed and the impugned order of discharge was being set aside on the technical ground that the reason given for not holding the departmental enquiry were not germane to the effect that the holding of the enquiry was not reasonably practicable. Under such circumstances, we do not find any infirmity in the discretion exercised by the learned Single Judge in not awarding the backwages. However, the reason given by the learned Single Judge for hot awarding the backwages, a noticed above, may cast some aspersion on the writ petitioner. Consequently we modify the aforesaid observation that the petitioner (appellant now) would not be entitled to any backwages in view of the fact that his discharge has been set aside wholly on technical ground and the appellant-writ petitioner has not rendered any service during the period from discharge till he was reinstated. 6. The writ appeal would stand dismissed subject to the observations made above.