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2015 DIGILAW 173 (GAU)

ATUL CHANDRA BARUAH v. DIBRUGARH UNIVERSITY

2015-02-13

B.K.SHARMA, MICHAEL ZOTHANKHUMA

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ORDER (ORAL) B.K. Sharma, J 1. The Registry shall register this appeal. 2. Heard Mr. P.J. Saikia, learned counsel for the appellant/applicant who was the writ petitioner in WP(C) No. 2642/2008 disposed of on 24/07/2014. Also heard Mr. N. C. Das, learned senior counsel assisted by Mr. A. Das, learned counsel representing the Dibrugarh University. 3. By means of this appeal, the appellant, who was the petitioner in WP(C) No. 2642/2008, has assailed the order dated 24/07/2014, by which the writ petition was dismissed. The petitioner/appellant while was serving as Upper Division Assistant in the respondent University was taken up for a departmental proceeding and on conclusion of the same when the charges levelled against him were found established, he was imposed with the penalty of compulsory retirement vide order dated 30/10/2006. Being aggrieved, he preferred a writ petition being WP(C) 5882/2006 which was disposed of on 18/12/2007. Interfering with the penalty of compulsory retirement, the matter was left open to the University to impose such lesser punishment as it might consider just and appropriate. 4. Pursuant to the aforesaid order of this Court, the Disciplinary Authority vide its Annexure-C order dated 03/03/2008 imposed the following punishment on the petitioner / appellant. “i) Withheld his 5 (five) Annual Increments with cumulative effect due w.e.f. the date of commencement of this order. (ii) To make refund/recovery of the amount of P.F. drawn by him in an irregular manner. (iii) Payment of the admissible subsistence allowance only during the period of suspension, i.e. deprived from getting fully salary (Treated the period of suspension as ‘dies non’.). (iv) Withheld promotion. (v) Demoted to the post of Lower Division Assistant with effect from the date of his joining and posted in the Research and Development Cell of the F & A Branch (U.G.C. & Budget section), D.U. He is directed to report his joining on duty accordingly.” 5. Being aggrieved by the said order dated 03/03/2008, the petitioner preferred a departmental appeal, which was disposed of by order dated 13/05/2008 (Annexure-G) modifying the earlier punishment. For a ready reference, the order is quoted below :- “OFFICE OF THE REGISTRAR :: DIBRUGARH UNIVERSITY DIBRUGARH No. DU/EST/EP/321/85/2961 dated 13/05/2008 ORDER In consideration of the appeal submitted by Sri Atul Ch. Being aggrieved by the said order dated 03/03/2008, the petitioner preferred a departmental appeal, which was disposed of by order dated 13/05/2008 (Annexure-G) modifying the earlier punishment. For a ready reference, the order is quoted below :- “OFFICE OF THE REGISTRAR :: DIBRUGARH UNIVERSITY DIBRUGARH No. DU/EST/EP/321/85/2961 dated 13/05/2008 ORDER In consideration of the appeal submitted by Sri Atul Ch. Baruah, L.D.A., Research & Development Cell of the F & A Branch (UGC & Budget Section), D.U., the Hon’ble Vice-Chancellor, Dibrugarh University is pleased to modify the order of punishment imposed upon him vide order No. DU/EST/32185/1464 dated 03.03.2008 as follows :- i) To make refund /recovery of the amount of P.F. drawn by him in an irregular manner. ii) Payment of the admissible subsistence allowance during the period of suspension only, i.e. deprived from getting full salary (Treated the period of suspension as ‘dies non’). iii) Withheld promotion. iv) Demoted to the post of Lower Division Assistant with effect from the date of his joining. Sd/- Registrar Incharge Dibrugarh University, Dibrugarh”. 6. In the writ petition, the plea taken was that by the impugned order dated 13/05/2008, the petitioner/appellant was imposed with multiple penalties. However, considering the nature of the order and the punishment imposed, the learned Single Judge declined to accept the said plea and by the impugned order dated 24/07/2014 dismissed the writ petition. Hence this appeal. 7. As to what is modified order of penalty, the same has been noted above. The petitioner was placed under suspension in contemplation of a departmental proceeding which resulted in imposition of penalty, although the same was later on modified. Thus, it cannot be said that the suspension of the petitioner facilitating the departmental enquiry was unjustified. It is in such circumstances, the University authority decided not to pay any other pay and allowances for the period of suspension except the subsistence allowance that was paid to him. This cannot be said to be a penalty. As regard the recovery of the PF amount, which the petitioner had drawn in an irregular manner, the University authority is entitled to do so. This is also not a penalty. The only penalty that has been imposed on the petitioner/appellant is that of demotion to the post of Lower Division Assistant. As regard the withholding of promotion, it is the submission of Mr. This is also not a penalty. The only penalty that has been imposed on the petitioner/appellant is that of demotion to the post of Lower Division Assistant. As regard the withholding of promotion, it is the submission of Mr. Saikia, learned counsel for the appellant that such withholding cannot be for indefinite period. It is hereby clarified that withholding of promotion shall not be for indefinite period but shall be considered as and when the petitioner/appellant becomes due and eligible for promotion. Needless to say that the DPC and/or selection committee shall consider his case for promotion strictly in accordance with the rules, regulations and ordinance etc taking into consideration the criteria for promotion. 8. With the above clarification, the writ appeal stands disposed of.