Point of Law : Question of back wages would be considered only if the authorities have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and the employee was unlawfully prevented from discharging the duties.

JUDGMENT :

KAKHETO SEMA, J.

1. Heard Mr. Wati Jamir, learned counsel for the petitioner and Mr. K. Angami, learned Sr. Government Advocate for the State respondents.

2. The present petition has been filed seeking for a direction to the State respondents to pay the full salary and other consequential benefits to the petitioner for the period during which the petitioner was under suspension i.e. w.e.f 28/12/2013 to 07/11/2020.

3. The case in brief is that, the petitioner was appointed as constable, in the police department in the year 1999 and posted under the establishment of the respondent No. 4 i.e. the Inspector General of Police (Int), Nagaland, Kohima. Thereafter, in the year 2008, the petitioner was attached to the Special Branch (Int) Dimapur, and served in that capacity till the petitioner voluntarily retired from service on 06/09/2021. It is the case of the petitioner that while he was posted at Dimapur he used to purchase firewood from the bordering area of Karbi Anglong (Assam) by cash payment as well as by making advance payment to the seller. On 28/12/2013 when the petitioner went to collect firewood at Kania Tokbi Goan from one John Kathar to whom the payment for the firewood was made in advance, an argument ensued as the said John Kathar demanded more money for the firewood. In the midst of the argument, some unknown person, hit the petitioner on his head from behind rendering the petitioner unconscious. It was only when the petitioner came back to his sense he found himself at the Dillai Police Station in Assam. The petitioner also came to learn that a criminal case namely Dillai Police Station Case No. 38/2013 u/s 379/307/34 IPC r/w Sec. 40/41 AFR Act r/w Sec. 25(1-a)/27 of the Arms Act was registered against the petitioner on the basis of the FIR lodged by the said John Kathar alleging that the petitioner and one Islam Choudhury were caught while stealing firewood from Kania Tokbi Goan and the petitioner had opened fire at the complainant and his friends with the intention to kill them.

4. Consequent to the registration of the criminal case and the arrest of the petitioner by the Dillai Police, the respondent No. 4, in exercise of the powers conferred by Sub-Rule (1) of Rule-6 of the Nagaland Services (Discipline and Appeal) Rules, 1967, issued the order dated 31/01/2014 placing the petitioner under suspension w.e.f. 28/12/2013. The order dated 31/01/2014 inter-alia provided that during the period of suspension, the petitioner shall be entitled to draw subsistence allowance at an amount equal to the leave salary which the petitioner would have drawn if he had been on leave on half pay additional dearness allowances and other allowances as admissible from time to time.

5. That a departmental enquiry was instituted against the petitioner under Rule-9 of the Nagaland Services (Discipline and Appeal) Rules, 1967 by framing the Articles of charges against the petitioner for violation of Rule-4(1)(i) and (iii) of the Nagaland Government Servants Conduct Rules, 1968. The enquiry officer conducted the enquiry and on completion of the enquiry, submitted the enquiry report to the respondent No. 4, opining that, in the absence of independent witnesses, the charges framed against the petitioner cannot be proved.

6. Pursuant to the submission of the enquiry report, the respondent No. 4, concurring with the findings in the enquiry report, issued the order dated 07/11/2020 revoking the suspension of the petitioner and re-instating the petitioner’s in service with immediate effect. The order dated 07/11/2020 however provided that the subsistence allowance paid to the petitioner during his suspension period will remain as such till culmination of the criminal case.

7. Subsequently by the judgment dated 25/02/2021, the criminal case pending against the petitioner was also disposed by the court of the learned Sessions Judge, Karbi Anglong, Diphu, Assam, acquitting the petitioner from the criminal liabilities of the case on benefit of do