Staff Reporter
Guwahati: A peculiar situation has arisen in an appeal before the Gauhati High Court (HC), whereby, because of delayed disposal of the litigation initiated by an employee of a university, the employer is now required to pay the subsistence allowance along with its revisions to the employee for twelve long years.
A Division Bench of the HC comprising Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury, while dismissing an appeal (WA/419/2024), held that when a punishment order is set aside on a technical ground and the matter is remanded for a fresh decision, the employee is deemed to be in service and entitled to subsistence allowance but not automatic back wages for the intervening period.
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 bench that the disciplinary authority had taken the decision to punish the respondent based on the inquiry report, without giving him an opportunity to file a representation 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 a reasonable opportunity to the respondent to make a representation against the findings.
Thereafter, the Disciplinary Authority, by an order dated November 2, 2016, imposed the penalty of compulsory retirement on the respondent with effect from December 31, 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.
The single-judge bench found that the penalty of compulsory retirement passed by the disciplinary authority would be operative from November 2, 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 December 31, 2004, as he was not on the rolls of the university.
Aggrieved by the decision, the respondent filed another petition. The Single Judge concluded that the respondent would have to be considered to be under deemed suspension with effect from December 31, 2004, till November 2, 2016. Therefore, he would be entitled to subsistence allowance with permissible revisions.
The university, aggrieved by the decision of being made to pay a subsistence allowance, filed an appeal before the Gauhati High Court.
The university argued that the judgement of the Single judge never directed for any reinstatement of the respondent in service. The matter had only been remanded to the Disciplinary Authority for taking a fresh decision after receiving the reply of the respondent against the inquiry findings.
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.
The court further observed that back wages do not automatically become payable on reinstatement where the reinstatement was done due to the 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.
Therefore, it was held by the Division Bench that the respondent had to be treated in the service of the Dibrugarh University in the intervening period for him to be entitled to subsistence allowance during the period of deemed suspension along with its revision.
"We also need to state here that we do not find the impugned judgement to be perverse or bad in law. For the afore-noted reasons, we refrain ourselves from interfering with the impugned judgement," the bench ruled, while dismissing the appeal.
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