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2018 DIGILAW 31 (MEG)

Phlanstar Kharsohnoh v. State of Meghalaya

2018-07-12

MOHAMMAD YAQOOB MIR

body2018
JUDGMENT : Mohammad Yaqoob Mir, J. The petitioner admittedly was appointed as teacher in Umsawmat L.P. School on 16th February, 1995. 2. It appears that a complaint has been filed against him which was forwarded to the Secretary, Managing Committee Umsawmat Pres L.P. School by the Sub-Divisional School Education Officer, Shillong on 26th June, 2013. The Managing Committee was to submit report within 20 days on two points: (i) why did the School Managing Committee of Umsawmat Pres LPS allow Shri Phlanstar Kharsahnoh, a Govt. paid teacher to enjoy the MGNREGA Schemes as per muster roll statement attached and (ii) why did the School Managing Committee observe silence in the matter till date. 3. The said communication further provides that the salary of Shri Phlanstar Kharsahnoh is withheld w.e.f. 01.03.2013 till the case is finalized. 4. It is this letter dated 26th June, 2013 which is sought to be quashed. In the petition petitioner has prayed as follows: (i) to direct the respondents if any action is proposed against the petitioner the same should be in terms of appropriate Law and Rule framed for the purpose. (ii) quash the order dated 26-06-2013 vide which the salary of the petitioner is withheld. (iii) to direct the Managing Committee to allow the petitioner to resume the duty immediately as well as treat the period from August, 2015 onward till date on duty. (iv) to pass any other order/orders as may be deemed fit and proper. 5. The petitioner has been representing before the respondents but with no response till the year 2016. On 28th June 2016 Under Secretary to the Govt. of Meghalaya, Community & Rural Development Department highlighted that under NREGA anyone can get registered and seek employment. However, against employee for who is alleged to have availed benefit of Scheme, department concerned can proceed against him under conduct Rules. 6. I/c Sub-Divisional School Education Officer, Shillong vide his letter dated 10th August, 2016 addressed to the Deputy Director of School Education & Literacy, Meghalaya, Shillong has forwarded the original explanation furnished by petitioner with a request to release his salary. 6. I/c Sub-Divisional School Education Officer, Shillong vide his letter dated 10th August, 2016 addressed to the Deputy Director of School Education & Literacy, Meghalaya, Shillong has forwarded the original explanation furnished by petitioner with a request to release his salary. In response whereof the Joint Director of School Education & Literary, Meghalaya, Shillong vide communication dated 22nd December, 2016, addressed to the Sub-Divisional School Education Officer, Shillong instructed him to inform the School Managing Committee that they may submit resolution of suspension of petitioner with release of subsistence allowance as per rule. The I/c Sub-Divisional School Education Officer, Shillong vide letter dated 16th January, 2017 addressed to the Secretary/President, Managing Committee Umsawmat Pres L.P. School has forwarded the said letter dated 22nd December, 2016 with instructions to pass resolution for suspension of petitioner from service and allow him to draw subsistence allowance as per rule. The Secretary, Managing Committee Umsawmat Pres L.P. School submitted a detailed report to the Sub-Divisional School Education Officer, East Khasi Hills, Shillong dated 8th February, 2017 after referring to the letter, the Secretary of the Managing Committee has requested for issue of guidance on the following points. (i) What course of action shall the Managing Committee take in respect of his withheld salary w.e.f. 01.03.2013 till 13th August, 2015 ? (ii) As incumbent has disappeared since 14th August, 2015 till date, is it not appropriate to consider this period as absence without intimation which tantamount to leave without Pay ? (iii) If subsistence Allowance is to be drawn against his name, from which date is it effective ? (iv) As per laid down Financial Rules, any penalized incumbent may be allowed Subsistence Allowance @ 50% of the Scale of Pay enjoyed by such incumbent on the date of issue of such suspension. Further, allowance of such incumbent may be enhanced to 75% after a period of 6(six) months. But in this case, the incumbent has been absent for a total of 1 (one) Year, 5(five) Months and 24 (twenty four) Days till 7th February. How will the subsistence Allowance be calculated? As such, the Managing Committee would not like to allow any discrepancy or unnecessary complication in the near future regarding the smooth implementation of your order as per laid down rules and regulations. 7. How will the subsistence Allowance be calculated? As such, the Managing Committee would not like to allow any discrepancy or unnecessary complication in the near future regarding the smooth implementation of your order as per laid down rules and regulations. 7. Guidance so far has not been issued by Sub-Divisional School Education Officer which prompted the petitioner to file the instant petition. 8. Whatever allegations against petitioner/teacher there is a set procedures for launching appropriate proceedings which include departmental enquiry followed by disciplinary action. The core issue has remained to be addressed, inter-departmental communication without any will to take a decision has entangled the petitioner into litigation and uncertainty. 9. If the petitioner after enquiry is found to have committed irregularities or illegalities or any other act with penalty consequences what prevented the respondents in not initiating proceedings against the petitioner in accordance with applicable rules and regulations is the question which has remained to be answered. The Managing Committee has to take a decision to place the petitioner under suspension pending enquiry. Neither enquiry has been initiated nor petitioner been placed under suspension. The Managing Committee has shown its inability to take a decision regarding initiating enquiry/placing petitioner under suspension and consequent release of Subsistence Allowance. From the Managing Committee no plausible explanation is forthcoming for withholding the salary of the petitioner w.e.f. 1st March, 2013 to 13th August, 2015. 10. The Managing Committee shall take a decision regarding release of withheld salary w.e.f. 1st March, 2013 to 13th August, 2015 within 15 days. The Managing Committee shall initiate action whatever permissible under rules regarding the alleged disappearance/absence from duty of the petitioner from 14th August, 2015 till date, and also to initiate enquiry if they so chose in the light of the complaint so received regarding MGNREGA benefit by the petitioner. Subject to rules to place petitioner under suspension pending enquiry/proceedings followed by disciplinary proceedings, if initiated, to be concluded within a period of three months. 11. Disposed of as above along with Misc. Case No. 68 of 2017.