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2013 DIGILAW 785 (GAU)

Khogen Ch. Bora v. State of Assam

2013-11-07

HRISHIKESH ROY

body2013
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. S. Nath, learned counsel appearing for the petitioner. The State respondents are represented by the learned Govt. Advocate Ms. K Devi. The petitioner is serving as a Forest Guard in Logging Division of Tinsukia District. He remained absent from duty for about 1398 days w.e.f. 1.2.2001 to 25.2.2001 and it appears that the absence was on account of arrest and imprisonment of the petitioner in a murder case. The learned Sessions Judge, Tinsukia on 30.4.1997 in Sessions Case No. 60(T) of 1993, convicted the accused under Section 302 IPC and sentenced him to life imprisonment. But the High Court gave him the benefit of doubt in the Crl. Appeal No. 174/1997 and set aside the conviction. 2. After his release from the Jail, the petitioner was allowed to resume his duties w.e.f. 26.2.2001, but through the order dated 28.10.2002 (Annexure-V), the Conservator of Forest has ordered the period of absence to be treated as leave without pay and accordingly the present case is filed with a prayer for salary for the period of absence. 3. Representing the petitioner, Advocate Mr. S. Nath submits that the petitioner has faced double penalty for one default through imprisonment and by way of unpaid salary and accordingly it is argued that since the Appellate Court acquitted the petitioner, direction should be given for disbursal of his salary for the period when the petitioner could not attend to his duties, as he was lodged in jail after conviction. 4. In her turn, the Govt. Advocate submits that the petitioner was absent from duty without any leave/information for about 3 years & 4 months and after his acquittal, when he was allowed to resume duty w.e.f. 26.2.2001, a disciplinary proceeding was drawn up on charge of unauthorized absence and misinformation to the higher authorities. The departmental inquiry found the petitioner guilty of the charges and this is how the order dated 28.10.2002 was issued by directing the period of absence to be treated as leave without pay without service break. Since no service was received for the concerned period, Ms. Devi argues that the petitioner is disentitled to any pay and allowances for the period of absence. 5. Since no service was received for the concerned period, Ms. Devi argues that the petitioner is disentitled to any pay and allowances for the period of absence. 5. On the contention of the petitioner that he faced double penalty, it is apparent that the incarceration of the petitioner is on account of a murder conviction, whereas the disciplinary proceeding was on the charge of unauthorized absence and misrepresentation to the employer. Therefore acquittal through benefit of doubt can't ipso facto in my view lead to the conclusion that the jailed period should enable the employee to receive salary. If this is accepted, it will give premium to the incarceration to the accused. It must also be noted that the acquittal was not the clear acquittal, but was on account of benefit of doubt. 6. On the departmental charge of unauthorized absence, misguiding the authorities and suppression of information, a disciplinary proceeding was drawn up on the statement of allegation of 25.6.2001 and the inquiry officer has found the petitioner guilty of these charges. However the petitioner does not challenge the order of the inquiry officer or the disciplinary proceeding. 7. Therefore since the petitioner was absent for the concerned period and was found guilty of absenteeism and misrepresentation to his employer, it can't be said that he was punished twice on same issue. Moreover the petitioner is not entitled to any salary for the period of absence, since the employer received no service from the petitioner for the said period. It is apparent that the petitioner is not being punished twice as the disciplinary proceeding has nothing to do with the criminal charge of murder. 8. Considering the above, I see no merit in this case and the same is accordingly dismissed. However if any salary of the petitioner is unpaid as is alleged, after he was reinstated on 26.2.2001, the authorities are at liberty to examine the grievance and disburse the due salary as per law. With the aforesaid direction, the case stands disposed of with no order on cost. Disposed off