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Gauhati High Court · body

2010 DIGILAW 824 (GAU)

Mrinal Khound v. State of Assam and Ors.

2010-11-02

B.P.KATAKEY

body2010
Heard Mr. R. Baruah, the learned counsel for the petitioner as well as Mr. B.J. Ghosh, the learned State Counsel appearing for the respondents. 2. The petitioner in the present petition has challenged the departmental proceeding initiated vide the show cause notice dated 14th December, 1995 issued by the Secretary to the Government of Assam, Personal (A) Department asking him to show cause as to why the disciplinary action under the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 read with Article 311 of the Constitution of India should not be taken against him for the allegations contained in the said show cause notice. The petitioner has also prayed for a direction to the respondent authorities to permit him to resume his duties and to give necessary posting. 3. The petitioner was appointed as Sub-Deputy Collector and posted at Mangaldoi in the district of Darrang vide order dated 13th February, 1984, pursuant to the selection for appointment in ACS Class-II Service. The petitioner while in service fell ill and consequently initially on 15th September, 1986 applied for earned leave, which was granted for 3 (three) months. Subsequent applications were filed for earned leave for subsequent periods. During the period, since the petitioner prayed for earned leave on medical ground, he was asked to appear before the Medical Board and accordingly, he appeared before several Medical Boards. The Medical Board, constituted for the purpose of examination of the petitioner, submitted a report on 11th November, 1987 certifying that the petitioner is fit to resume his duties, as he has recovered from his illness and may be allotted light duties for a period of 6 (six) months. According to the respondents, despite such opinion of the Medical Board, the petitioner did not resume his duty, which necessitated issuance of the show cause notice on 14th December, 1995 asking him to show cause as to why disciplinary action should not be taken. The petitioner, on receipt of the same, submitted his reply on 20th December, 1995. It also appears from the records produced by Mr. Ghosh, the learned State Counsel that the petitioner, at that point of time, offered to resign from service, for which the concerned department asked the petitioner to submit the formal resignation letter, which the petitioner did on 16th August, 1997. Records, however, do not reveal the acceptance of such resignation as submitted by the petitioner. Ghosh, the learned State Counsel that the petitioner, at that point of time, offered to resign from service, for which the concerned department asked the petitioner to submit the formal resignation letter, which the petitioner did on 16th August, 1997. Records, however, do not reveal the acceptance of such resignation as submitted by the petitioner. The records produced by Mr. Ghosh further reveal that though the disciplinary proceeding was initiated by issuing the show cause notice dated 14th December, 1995 and the petitioner submitted his reply pursuant to such show cause notice issued, the said proceeding rest at that stage and did not proceed further, may be because the petitioner offered to resign and accordingly submitted his resignation on 16th August, 1997. 4. The petitioner, thereafter, submitted an application on 5th September, 2008 before the Commissioner and Secretary, Government of Assam allowing him to join and also requesting him to give the posting stating inter alia that he has completely recovered from his illness. Since no action was taken, the petitioner submitted another application as well as the representation dated 12th September, 2008 and such request of the petitioner has not been attended to till date. 5. Mr. Baruah, the learned Sr. Counsel for the petitioner submits that since the petitioner has neither been put under suspension nor been dismissed or removed from service or his resignation has been accepted, the respondents cannot keep him hanging position without accepting the joining report as submitted by him on 5th September, 2008. Mr. Baruah, therefore, submits that necessary directions may be issued to the respondent authorities to accept such joining report and to give the necessary posting and also to pay the unpaid salary since the year 1986. 6. Mr. Ghosh, the learned State Counsel, on the other hand, has submitted that though the petitioner was found to be medically fit to resume his duties by the Medical board, as reflected in the report of the Medical Board dated 11th November, 1987, he did not report for his duty, which compelled the authority to initiate a proceeding by issuing the show cause notice dated 14th December, 1995. It has further been submitted that the said proceeding, however, did not proceed further, as the petitioner has submitted the resignation letter on 16th August, 1997, on which, however, no order has been passed . Mr. It has further been submitted that the said proceeding, however, did not proceed further, as the petitioner has submitted the resignation letter on 16th August, 1997, on which, however, no order has been passed . Mr. Ghosh further submits that the petitioner only on 5th September, 2008 submitted the application addressed to the Commissioner and Secretary to the Government of Assam to allow him to join the duty, followed by the representation dated 12th September, 2008. According to Mr. Ghosh, from 11th November, 1987, i.e. the date when the Medical Board found the petitioner to be fit for resuming his duties till 5th September, 2008, i.e. almost 21 (twenty one) years, the petitioner did not come forward to resume the duties and hence, the petitioner cannot claim that he should be paid the salary for the period and instead the department may initiate further departmental proceeding against the petitioner for his unauthorized absence. Mr. Ghosh, however, has fairly submitted that since the petitioner has not been terminated or removed from service or his resignation has been accepted, the petitioner continues to be the Government servant. 7. It appears from the facts, as narrated above, that the petitioner was found to be medically fit to resume his duties by the Medical Board, as reflected in the report of the Medical Board dated 11th November, 1987. The petitioner thereafter, only on 5th September, 2008 submitted the application before the Commissioner and Secretary for allowing him to resume to his duty, without bothering to do anything between 1987 to 2008. However, the fact remains that the petitioner's service has not been terminated or he has not been removed from service. No decision has also been taken by the respondent authorities on the resignation submitted by the petitioner on 16th August, 1997. The subsequent conduct of the petitioner in filing the application on 5th September, 2008 amounts to withdrawal of his earlier resignation letter. The petitioner, therefore, continues to be the Government servant, pursuant to his order of appointment dated 13th February, 1984. 8. As noticed above, the petitioner though has filed the application dated 5th September, 2008 requesting the Commissioner and Secretary to allow him to join the duty, followed by the representation dated 12th September, 2008, no order, however, has been passed on such request. 9. 8. As noticed above, the petitioner though has filed the application dated 5th September, 2008 requesting the Commissioner and Secretary to allow him to join the duty, followed by the representation dated 12th September, 2008, no order, however, has been passed on such request. 9. That being the position, the present writ petition is disposed of with a direction to the Commissioner and Secretary to the Government of Assam, Personal (A) Department to pass necessary order on the request of the petitioner to allow him to resume his duties. The said authority shall also pass necessary order relating to the wages for the earlier period, keeping in mind the fact that the petitioner for a long period of time, as noticed above, did not come forward to resume his duties. It is also open for the respondent authorities to proceed with the earlier departmental proceeding initiated vide show cause notice dated 14th December, 1995 and also to initiate a further departmental proceeding, if so advised, for the unauthorized absence of the petitioner. The necessary orders shall be passed by the Commissioner and Secretary within a period of 4 (four) weeks from today. 10. The writ petition is accordingly disposed of. No cost.