Dismissal On Technical Grounds Means Employee Remains 'In Service' For Subsistence Allowance, Rules Gauhati HC

Background Facts

The respondent was serving as a Lower Division Assistant (LDA) in the Finance and Accounts Branch of Dibrugarh University. A departmental inquiry was initiated against him for misconduct. Therefore, he was removed from service. After multiple rounds of litigation, the penalty was modified to compulsory retirement.

Aggrieved by the punishment, the respondent filed a writ petition. It was found by the Single Judge that the disciplinary authority had taken the decision to punish the respondent based on the inquiry report, without giving him an opportunity to represent against the inquiry findings. Therefore, the punishment was set aside and the matter was remanded to the Disciplinary Authority for a fresh decision after giving reasonable opportunity to the respondent to represent against the findings.

Thereafter, the Disciplinary Authority by order dated 02.11.2016 imposed the penalty of compulsory retirement on the respondent w.e.f. 31.12.2004. The respondent filed a petition, which was disposed of with a direction to the University to pay all amounts due to the respondent. When back-wages were not paid, the respondent filed another petition seeking back-wages for the intervening period.

It was found by the Single Judge that the penalty of compulsory retirement passed by the Disciplinary Authority would be operative from 02.11.2016. The respondent was given an opportunity to make a representation for payment of back-wages, and the University was directed to consider the same. The University considered the representation and rejected the prayer for back-wages on the ground that the respondent had not rendered service from 31.12.2004 as he was not on the rolls of the University.

Aggrieved, respondent filed another petition. The Single Judge concluded that the respondent would have to be considered to be under deemed suspension with effect from 31.12.2004 till 02.11.2006. Therefore, he would be entitled to subsistence allowance with permissible revisions.

Aggrieved by the same, the University filed an appeal before the Gauhati High Court.

It was argued by the University that the judgment of the Single judge never directed for any reinstatement of the respondent in service. Only the matter had been remanded to the Disciplinary Authority for taking a fresh decision after receiving the reply of the respondent against the inquiry findings.

It was further contended that the relationship between the respondent and the University was terminated from 31.12.2004. Further, the relationship existed only for the purposes of holding a fresh inquiry from the stage of furnishing the report and for no other purposes. Therefore, the prayer for grant of back-wages for the intervening period was rejected.

On the other hand, it was argued by the respondent that the order of punishment was set aside which would have amounted to reinstatement of the service of the respondent.

Findings and Observations of the Court

It was noted by the court that the order of punishment was set aside in the year 2015, which would have amounted to reinstatement of the service of the respondent for the purposes of eliciting his response to the inquiry report. However, such opportunity was never made available to him. This was the sole ground for setting aside the order of punishment. It was further observed that this could have been done only if the respondent was deemed to be under the rolls of the University. It was further observed that upon reconsideration, the University imposed the penalty of compulsory retirement, therefore, the suspension period of respondent continued.

It was further observed that back-wage does not automatically become payable on reinstatement, where the reinstatement was done due to setting aside of the order of removal from service on a technical ground with a direction to the University to take a fresh decision on the representation of the respondent.

It was held by the Division Bench that the respondent had to be treated in the service of the University in the intervening period for him to be entitled to subsistence allowance during the period of deemed suspension along with its revision.

It was further held that the respondent's dismissal order was set aside, but he was not exonerated of the charges against him, as the disciplinary proceedings were remitted only for furnishing the inquiry report and reconsidering the matter. The respondent was deemed to have remained in service from 31.12.2004. However, he was under deemed suspension rather than active service. Therefore, the respondent was held to be entitled to subsistence allowance for the period from 31.12.2004 to 02.11.2016.

With the aforesaid observations, the decision of the Single Judge was upheld by the Division Bench. Consequently, the Appeal filed by the University was dismissed by the Division Bench.

Case Name : Dibrugarh University and Anr. v. Lachit Borthakur

Case No. : WA/419/2024

Counsel for the Appellants : K. Gogoi, Advocate

Counsel for the Respondent : R. Sarmah, Advocate