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2013 Supreme(Gau) 249
Gauhati High Court
Ujjal Bhuyan, J.
Isha Haque Mondal -Appellant
Versus
State of Assam and Ors. -Resopndent
WP(C) No.2497 0/2012
Decided On : 13-05-2013
For the Petitioner: Mr. S. Ali
For the respondents: Ms. A. Verma
Headnote:
Constitution of India, 1950 – Article 226 – Penal Code, 1860 – Sections 376, 201 – Salary – Suspension – By way of this petition under article 226 of Constitution of India, petitioner seeks a direction to the respondents to treat the period of his suspension, i.e., from 9.3.2001 to 3.7.2007 as period spent on duty and to pay him full salary and allowances for the said period – Held, There was no consideration by the competent authority and consequently, no specific order was passed on the above aspect of the matter. – Competent authority vide the impugned order has regularized the suspension period by granting leave/extraordinary leave as due to the petitioner. – As rightly pointed out by the petitioner, such decision of the competent authority would prejudicially affect the petitioner inasmuch as it would lead to complete exhaustion of the petitioners leave to his credit and thereby deprive him of the benefit of leave encashment to which a Government servant is entitled to on his superannuation. – Petitioner having not been imposed any penalty following a departmental proceeding and having been acquitted in the criminal proceeding, with the sequence of events clearly demonstrating that the delay in the closure of the departmental proceeding cannot be attributed to the petitioner, it would be just and proper if the period of suspension is treated to have been spent on duty and full pay and allowances is paid for the said period – Respondents, more particularly respondent No. 1, have failed to discharge their duty as per the requirement of FE 54--B. – Court is of the view that the decision of the respondents to regularize the period of suspension by granting leave/extraordinary leave is not justified. – Writ Petition Allowed
2. By way of this petition under article 226 of the Constitution of India, petitioner seeks a direction to the respondents to treat the period of his suspension, i.e., from 9.3.2001 to 3.7.2007 as period spent on duty and to pay him full salary and allowances for the said period.
3. Case of the petitioner is that he is a medical practitioner by profession. He joined medical service under the Government of Assam in the Health and Family Welfare (A) Department as Medical and Health Officer. While serving as Senior Medical and Health Officer in the Dhubri Civil Hospital, Dhubri, petitioner was arrested in connection with Dhubri PS. Case No. 52/2001 under section 376, IPC and detained in jail custody for more than 48 hours. In contemplation of disciplinary proceeding and considering his arrest and detention in jail custody beyond 48 hours, petitioner was placed under suspension with effect from the date of his arrest, i.e., 9.3.2001 vide the Government notification dated 17.3.2001.
4. However, no disciplinary proceeding was drawn up against the petitioner. In the meanwhile, he was released from custody. Petitioner submitted application before the Secretary to the Government of Assam, Health and Family Welfare (A) Department on 15.10.2001 seeking reinstatement in service. But there was no response. The respondents also did not carry out any review of petitioner's suspension though they were required to do so as per Government instructions.
5. The criminal case against the petitioner went up to trial as a Sessions case, being Sessions Case No. 72/2001 under section 376/201, IPC. Learned Additional Sessions Judge, Dhubri by judgment and order dated 10.5.2002 acquitted the petitioner of the charge under section 376/201, IPC. However, the learned trial court convicted the petitioner under section 354, IPC and sentenced him to pay a fine of Rs. 5,000, in default, to suffer Rigorous Imprisonment ('RI') for three months.
6. Aggrieved by the aforesaid conviction and sentence, petitioner preferred an appeal before this court, which was registered as Criminal Appeal No. 218/2002. This court by the judgment and order dated 27.3.2007 allowed the appeal and set aside the order of conviction and sentence. This Court held that there was not even an iota of material suggesting any outraging of modesty of the informant (PW2). Taking the view that the impugned conviction was by way of conjectures and surmises, this court acquitted the petitioner and set him at liberty.
7. Petitioner thereafter submitted a representation before the Secretary on 20.4.2007 to rescind the suspension order dated 17.3.2001 and to reinstate him in service.
8. Government of Assam in the Health and Family Welfare (A) Department, i.e., respondent No. 1 issued notification dated 3.7.2007 reinstating the petitioner in service with immediate effect and posting him as Senior Medical and Health Officer at Hailakandi Civil Hospital, Hailakandi. Following the same, petitioner joined as Senior Medical and Health Officer, Hailakandi Civil Hospital on 1.10.2007.
9. Respondent No. 1 passed an order dated 11.10.2007 stating that since the petitioner has been acquitted by the High Court and set at liberty, the Governor of Assam is pleased to close the departmental proceeding contemplated against him. It was further ordered that the period of suspension may be regularized by granting leave/extraordinary leave as due to the petitioner. Subsequently, on a request by the Health Department, Government of Assam vide letter dated 3.3.2008, the office of the Accountant General (A&E), Assam submitted leave admissibility report dated 23.6.2008 in respect of the petitioner. It was certified that petitioner had earned leave for 180 days and half pay leave for 320 days to his credit as on 9.3.2001.
10. Petitioner submitted representation dated 19.5.2008 be
