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2019 DIGILAW 665 (GAU)

Mahendra Nath Das v. State of Assam

2019-05-28

KALYAN RAI SURANA

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JUDGMENT : Kalyan Rai Surana, J. Heard Mr. B. Sarma, learned counsel for the petitioner as well as Mr. G. Pegu, learned Government Advocate for the State respondent. 2. This case has a long chequered history. As on overall view of the matter, this Court intends to relegate the matter for a decision of the Chief Secretary, Government of Assam, only the truncated facts are referred herein. 3. By this writ petition filed under Article 226 of the Constitution of India, the case projected by the petitioner is that while working as a Superintendent in the Flood Control Department in the Assam Secretariat, he was placed under suspension w.e.f. 08.05.1995 on the allegation that while entering into service the petitioner had claimed himself to be a ST(P) candidate. Upon enquiry the authorities found that the petitioner does not belong to ST(P) category and that he was a member of OBC (Koch) community. 4. In reply to the charge-sheet, the petitioner had projected that he belonged to Sarania (Kachari) community and produced a certificate issued by the Sub-Deputy Collector (SDC), Sarupeta. Accordingly, a disciplinary proceeding was drawn-up against the petitioner and the penalty of removal from service was imposed by order dated 17.02.1998. The aggrieved petitioner had moved this Court by filing Civil Rule No.5307/98 and the said writ petition was allowed by judgment and order dated 19.06.2002. Accordingly, the petitioner was reinstated in service without consequential benefits by order dated 30.09.2002 passed by the Chief Secretary, Government of Assam. Once again by another order dated 20.02.2003, the authorities had imposed of a punishment of removal from service without giving a copy of the inquiry report and without giving the petitioner an opportunity of being heard. Accordingly, the petitioner had challenged the said order by filing WP(C) 1730/2003. The impugned order dated 20.02.2003 was set aside and quashed by this Court by judgment and order dated 29.10.2003. Accordingly, the petitioner was again reinstated in service with all consequential benefits vide order dated 24.04.2004. Thereafter, the petitioner superannuated from service on 30.06.2004 and by order dated 08.02.2005 another departmental proceeding was initiated against the petitioner in form of proceeding under Rule 21 of the Assam Services (Pension) Rules, 1969. Accordingly, the petitioner was again reinstated in service with all consequential benefits vide order dated 24.04.2004. Thereafter, the petitioner superannuated from service on 30.06.2004 and by order dated 08.02.2005 another departmental proceeding was initiated against the petitioner in form of proceeding under Rule 21 of the Assam Services (Pension) Rules, 1969. Owing to the inordinate delay in conducting the said proceeding, the petitioner again approached this Court by filing WP(C) 6223/07 challenging the denovo disciplinary proceeding initiated against him and for payment of consequential and other retirement benefits. This Court by order dated 07.01.2008, disposed of the said writ petition by directing that the proceedings against the petitioner shall be completed within a period of 3 months and it was further provided that such orders as may be passed in the proceeding will be placed before this Court in a sealed cover at the end of three months. Thereafter, by order dated 12.11.2008 passed by Chief Secretary, Assam, the said disciplinary authority accepted the finding of the inquiry to the effect that the charge of misconduct for producing a caste certificate claiming himself to be a member of ST(P) at the time of appointment in the Assam Secretariat as LD Assistant with a view to avail unlawful benefit is proved, and it was also held that in his written statement, the petitioner had admitted that he belonged to Sarania (Kachari) community which is not ST(P) of Assam. Hence, it was proposed to impose punishment by withholding a part of pension of Rs.200/- per month permanently on the petitioner under Rule 21 of the Assam Service/ Pension) Rules, 1969 and the department proceeding against the petitioner was finally disposed of. 5. It was further mentioned in the order that as regards payment of payment and allowance for the period of absence in view of the suspension removal from service, a separate order will follow. Accordingly, another order dated 12.11.2008 was passed by which the disciplinary authority had decided to regularize the period of absence by treating the same as "non-duty" (dies-non) and restricted the pay and allowances during the suspension period to the subsistence allowances paid already and it was also ordered that the petitioner would not be entitled to pay and allowances for the period of removal as indicated in the order considering the seriousness of the charge and the charge being proved. 6. 6. In the meanwhile, against the allegation of non-compliance of judgment and order dated 04.08.2008, the petitioner had moved COP (C) No.362/2008, which was closed by this Court on passing of order dated 12.11.2008. Aggrieved by the punishment, the petitioner had preferred WP(C) 2063/09. This Court by judgment and order dated 01.12.2009 in WP(C) 2063/09 did not find any infirmity or illegibility in interfering with the penalty of withholding a part of his pension @ Rs.200/- per month permanently under the provision of Rule 21 of the Pension Rules. However, the order under No. SAE. 63/98/337 dated 12.11.2008 by which restriction was imposed on the pay and allowance during the suspension period to the subsistence allowances already paid and against further decision that the petitioner would not be entitled to pay and allowance for the period of removal, the same was set aside and quashed by this Court by directing the Chief Secretary to the Government of Assam to take steps to allow financial benefit accrued to the petitioner during the period of his suspension period till removal from service. 7. Accordingly, the Chief Secretary to the Government of Assam by order dated 24.05.2010, regularized the period of suspension and removal from service for the purpose of enabling the petitioner to get all consequential benefits including retirement benefits as indicated in the said rules. 8. The learned counsel for the petitioner submits that although the petitioner was entitled to all consequential benefits, in the light of the aforesaid order dated 24.05.2010, the following benefits were not conferred to the petitioner viz. (1) Promotional benefits to the post of Under Secretary w.e.f. 22.02.1999 to 25.05.2004 and to the post of Deputy Secretary w.e.f. 26.05.2004 to 30.06.2004 and fixation of pension accordingly. (2) Sanction of LTC for the year 2000 to 2004. 9. Per contra, the learned Government Advocate has referred to the affidavit-in opposition which was filed on behalf of the respondent No.2 by the Under Secretary to the Government of Assam, Secretariat Administration Department. (2) Sanction of LTC for the year 2000 to 2004. 9. Per contra, the learned Government Advocate has referred to the affidavit-in opposition which was filed on behalf of the respondent No.2 by the Under Secretary to the Government of Assam, Secretariat Administration Department. It is submitted that the petitioner was initially appointment as LDA in the Assam Secretariat and promoted to the post of Superintendent as ST(P) candidate on the basis of caste certificate that had been issued and the claim of the petitioner was false and accordingly, as the penalty of withholding the part of the pension @ Rs.200/- per month permanently was imposed, the petitioner being a government employee was not entitled to be considered for promotion having been found guilty in the departmental proceeding with punishment being imposed on the petitioner. 10. The learned Government Advocate further submits that in view of the punishment suffered by the petitioner in course of the departmental proceeding, the DPC held in the year 2010 did not consider the case of the petitioner and his claim for prayer was uncalled for and was liable to be rejected. It is also submitted that all the financial benefits to which the petitioner was entitled to has already been granted to the petitioner and it is submitted that the petitioner was not entitled to any claim of LTC for the period of 2000 to 2004. 11. The learned counsel for the petitioner submits that the petitioner being entitled to be considered for promotion during the period of suspension and his removal of service because by that time his junior as per the Gradation List were promoted to the post of Under Secretary as well as Deputy Secretary w.e.f. 22.02.1999 and 26.05.2004 respectively. 12. It is seen that while the Under Secretary to the Government of Assam, Secretariat Administration Department had filed an affidavit-in-opposition on 21.02.2017, the said officer had sworn an affidavit by verifying the statements made in para 1 to 23 to be true to his knowledge. In his said affidavit-in-opposition, the deponent, namely, Nityananda Bora had not disclosed the period during which he was discharging his duty in the Secretariat Administrative Department and he has made no statement that he was associated in the disciplinary proceeding initiated against the petitioner. In his said affidavit-in-opposition, the deponent, namely, Nityananda Bora had not disclosed the period during which he was discharging his duty in the Secretariat Administrative Department and he has made no statement that he was associated in the disciplinary proceeding initiated against the petitioner. No documents have been enclosed to the said affidavit-in-opposition and on a perusal of the statement of facts mentioned therein, the statements made in the said affidavit-in-opposition does not inspire confidence to this Court. 13. In para-19 thereof it has been stated in the said affidavit-in-opposition by the respondent No.2 that all financial benefits had been given to the petitioner vide order No. SAE.147/2009/148 dated 24.05.2010 and it has been mentioned in para-9 of the same affidavit-in-opposition that earlier two removal order No. SAEE.63/98/72 dated 30.09.2002 and Order No.SAEE.63/98/103 dated 24.6.2010 were set aside and quashed by this Court and it is further stated in para-11 of the said affidavit-in-opposition that the matter of consequential benefits was under consideration at that time and the matter was finally disposed in the year 2010. Hence, it appears that for reasons placed to be known to the respondent No.2, the relevant documents were withheld from this Court. Apparently, there is no statement in the writ petition about any order dated 24.06.2010, purportedly removing the petitioner from service, which is mentioned in para-9 of the affidavit-in-opposition. Moreover, there is no statement in the affidavit-in-opposition that the claim of the petitioner for his promotion benefit was actually considered by the competent authority and refused. 14. Under such circumstances, as all the relevant facts have not been placed before this Court by the respondent No.2, this Court deems it fit and proper to direct the Disciplinary authority i.e. Chief Secretary, Government of Assam to examine the claim of the petitioner to be considered for following promotions and other reliefs: (1) Promotional benefits to the post of Under Secretary w.e.f. 22.02.1999 to 25.05.2004 and to the post of Deputy Secretary w.e.f. 26.05.2004 to 30.06.2004 and fixation of pension accordingly. (2) Sanction of LTC for the year 2000 to 2004. 15. (2) Sanction of LTC for the year 2000 to 2004. 15. Accordingly, the said authority shall dispose of the claim of the petitioner within a period of 2(two) months from the date of receipt of certified copy of this order along with the copy of the writ petition as well as the copy of the affidavit-in-opposition filed on behalf of the Commissioner and Secretary to the Government of Assam, Secretariat Administration Department (respondent No.2) through an Under-Secretary of the said Department on 21.02.2017. Needless to say that any order which may be passed by the said Disciplinary Authority, shall be communicated to the said petitioner within a reasonable time of the passing of the said order. 16. Accordingly, the petitioner is directed to provide his correct postal address as well as one e-mail address so as to enable the authority to communicate the order passed in the matter. 17. With the aforesaid direction this writ petition stands disposed of. 18. The rule is made absolute in terms of the order. 19. No costs.