Page No.# 1/12 GAHC010153382024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3906/2024 DILIP KUMAR SARMAH S/O- LATE CHENI RAM SARMAH, R/O- VILL.- MAJULI GOAN, P.S. AND DIST. GOLAGHAT, ASSAM, PIN- 785621. VERSUS THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY, GOVERNMENT OF ASSAM, IN THE DEPARTMENT OF SCHOOL EDUCATION (ELEMENTARY), DISPUR, GUWAHATI-6. 2:THE DIRECTOR ELEMENTARY EDUCATION ASSAM, KAHILIPARA GUWAHATI-19. 3:THE DEPUTY INSPECTOR OF SCHOOLS GOLAGHAT, DIST. GOLAGHAT ASSAM 4:THE DISTRICT ELEMENTARY EDUCATION OFFICER GOLAGHAT, DIST. GOLAGHAT ASSAM 5:THE SECRETARY TO THE GOVERNMENT OF ASSAM HOME AND POLITICAL DEPARTMENT ASSAM DISPUR, GUWAHATI-06. 6:THE SUPERINTENDENT OF CENTRAL JAIL LAKHRA GUWAHATI DISTRICT-KAMRUP (M) ASSAM Page No.# 2/12 Advocate for the Petitioner : MR R DHAR, MS.TWINKLE SARMA,MR S PARASHAR Advocate for the Respondent : SC, ELEM. EDU, Linked Case : WP(C)/4006/2024 DILIP KUMAR SARMAH SON OF LATE CHENIRAM SARMAH RESIDENT OF VILLAGE MAJULI GAON P.S. GOLAGHAT DIST- GOLAGHAT ASSAM PIN- 785621 VERSUS THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM DEPARTMENT OF SCHOOL EDUCATION (ELEMENTARY) DISPUR GUWAHATI-6 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19 3:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI-6 4:THE DEPUTY INSPECTOR OF SCHOOLS GOLAGHAT DISTRICT CIRCLE GOLAGHAT ASSAM 5:THE DISTRICT ELEMENTARY EDUCATION OFFICER GOLAGHAT ASSAM ------------ Advocate for : MR R DHAR Advocate for : SC Page No.# 3/12 ELEM. EDU appearing for THE STATE OF ASSAM AND 4 ORS BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN ORDER 24.09 .2025 Heard Mr. R. Dhar, learned counsel for the petitioner. Also heard Mr. B. Talukdar, learned standing counsel for the respondents in Education (Elementary) Department and Ms. K. Phukan, learned Government Advocate, appearing for the State respondents. 2. These two writ petitions, being WP(C) Nos.3906/2024 and 4006/2024 are preferred by the same petitioner, namely, Shri Dilip Kumar Sarmah. In WP(C) No.3906/2024, the petitioner has prayed for issuing direction to the respondent authorities to release the subsistence allowance w.e.f. 16.09.2006 to 30.06.2014, as he was placed under suspension, vide order dated 16.09.2006 and the which was not revoked till superannuation of the petitioner on 30.06.2014. 3. And in WP(C) No.4006/2024, the petitioner has prayed for issuing direction to the respondent authorities for regularization of the period of his suspension w.e.f. 16.09.2006 to 30.06.2014, for the purpose of pension. 4. As the parties involved in both the petition are the same and the issues involved are also almost same covering the same period of suspension, and as agreed upon by learned counsel for both the parties, it is proposed to dispose of both the petition this common order. 5. Mr. Dhar, learned counsel for the petitioner submits that, the petitioner herein was serving as Assistant Teacher in Thuramukh M.E. School in the district of Golaghat since 01.02.1985, and the said School is a provincialized school. The petitioner remained absent from duty in the said school from 01.02.2003, but he continued to receive his regular Page No.# 4/12 salary upto February, 2006. Thereafter, an enquiry was made by the Inspector of Schools, Golaghat District Circle, Golaghat and submitted a report on 04.07.2006. Then the matter was brought to the notice of the Minister of the concerned department on 01.09.2006, who made some queries in respect of the matter and thereafter, the District Elementary Education Officer (DEEO), Golaghat, vide Memo No.DEEO/GLT/Suss/2006/671-78, dated 16.09.2006, placed the petitioner under suspension with immediate effect. While the suspension order was in force, the petitioner retired from service on superannuation on 30.06.2014, on attaining the age of 60 years. Thereafter, a pension proposal was submitted by the petitioner along with his service book before the Directorate of Pension, Assam, but the same was returned along with service book directing the petitioner to indicate the date of retirement, after due verification of his service book and to provide last pay certificate of the petitioner. Thereafter, on 04.04.2023 the DEEO, Golaghat has written a letter to the Director of Elementary Education indicating that the provisional pension of the petitioner could not be paid, as his suspension period has not been regularized and being aggrieved, the petitioner approached this Court by filing WP(C) No.3906/2024 for releasing subsistence allowance and by filing WP(C) No.4006/2024, the petitioner has prayed for issuing direction to the respondent authorities for regularization of his suspension period. 6. The respondent No.2 has filed affidavit-in-opposition in WP(C) No.3906/2024, wherein she has taken a stand that an Enquiry Committee was constituted to look into the claim of the petitioner and accordingly, a hearing was conducted on 15.10.2024 to examine the matter in respect of the claim of the petitioner at her office, in presence of all the stakeholders including the District Elementary Education Officer, Golaghat, D.I. of Schools, Golaghat and Headmaster of Thuramukh M.E. School under D.I. of Schools, Golaghat. It is stated that though the petitioner was notified for attending the hearing, but he remained absent without intimation and then on the basis of the materials available on the record and the written statements submitted by the concerned officials, the Committee arrived at the following findings as noted herein below:- (i) The petitioner was performing his duties as Assistant Teacher in the Thuramukh ME Page No.# 5/12 School in the District of Golaghat till 28.02.2006 and accordingly, he had rightly received his monthly salary for the period from 01.01.2003 to 28.02.2006. (ii) The report regarding unauthorized absence in service in respect of the petitioner for the period from 01.02.2003 to 28.02.2006, as submitted by the DEEO of concern district was re-verified with other source attendance records available in the school and revealed that the petitioner had rendered his regular service for the said period. (iii) In pursuance of the instruction of the Minister of Education, Govt. of Assam along with the Enquiry report received from the then Inspector of Schools, Golaghat District Circle, wherefrom it was revealed that the petitioner had remained absent from his duty without prior permission from the competent authority and therefore, he was placed under suspension vide the then DEEO, Golaghat order dated 16.09.2006. (iv) The Departmental Proceedings was initiated against the petitioner and a Show Cause notice was served on him by the then DEEO, Golaghat on 06.03.2007. Being non-receipt of reply from the petitioner, another show cause notice was issued and sent to him through registered letter by the then DEEO, Golaghat on 25.03.2008. But, the same was returned by the postal department, undelivered with a remark "person is missing". (v) Two FIRs on 25.04.2008 and 18.08.2008 were lodged against the petitioner in Golaghat Police Station regarding his missing by the then DEEO, Golaghat. Also a missing notice was published in the Daily Assamese News Paper "Dainik Batori" on 22.01.2009. (vi) The petitioner remained untraced during the period and in the meantime he had attained the age of superannuation on 30.06.2014. As per report of the DEEO, Golaghat, since the teacher concerned was missing and the Departmental Proceeding was also not finalized, hence, the Deputy Inspector of Schools concerned district did not take initiative for onward submission of the pension Page No.# 6/12 proposal of the petitioner. (vii) Subsequently, the DEEO, Golaghat had submitted the pension proposal in respect of the petitioner to the office of the Director of Pension, Assam vide proposal dated 31.10.2019 and again on 20.12.2021. But, the Director of Pension could not finalize the pension proposal due to insufficient documentary updation, as well as non- submission of relevant information. (viii) As reported, due to non-finalization of the Departmental Proceedings, the payment of provisional pension could not be initiated by the then DEEO, Golaghat. (ix) In pursuance to the Hon'ble High Court order, dated 03.10.2024, passed in W.P.(C) No.3906/2024, filed by the petitioner, a hearing was conducted on 15.10.2024, in the office of the answering deponent, for which, a hearing notice was issued in the name of the petitioner vide notice dated 09.10.2024, but, the same could not be delivered to the petitioner as he was not available in his residence till 14.10.2024. (x) Further, it is learnt from para 14 of the writ petition being W.P.(C) No.4006/2024 filed by the petitioner that a case has been registered against him being Hatigaon P.S. Case No. 332/2023, under Section 376 IPC read with Section 6 of the POCSO Act and presently he is behind the bars, which may be the reason of his absence on the date of hearing on 15.10.2024. 7. Thereafter, the Director of Elementary Education had arrived at a conclusion that - (i) As the petitioner is found unauthorizedly absent in his regular school duties w.e.f. 01.03.2006 till the date of his suspension i.e. 16.09.2006 and as per the provision of FR-17(1), the petitioner shall not be entitled for any pay and other allowances for that period. (ii) The petitioner was placed under suspension on 16.09.2006 and the first show- cause notice was served upon him on 06.03.2007 though the reply has not been received and he shall be entitled to arrear salary as well as other financial benefits for the period from 17.09.2006 to 06.03.2007. Page No.# 7/12 (iii) The period w.e.f. 07.03.2007 to the date of his superannuation i.e. 30.06.2014 shall be considered as the period of unauthorized absence in service in respect of the petitioner. As the petitioner failed to respond to the show-cause notices issued by the authority concerned on 06.03.2007 and 25.03.2008 and the Daily Newspaper publication on 22.01.2009, for which he is not entitled to any arrear salary and other financial benefits including the pensionary benefits on the basis of the principle of 'no work no pay'. (iv) The period of suspension in respect of the petitioner w.e.f. 17.09.2006 to 06.03.2007, is regularized and shall be treated as on duty. (v) The period of unauthorized absence in respect of the petitioner w.e.f. 01.03.2006 to 16.09.2006, shall be considered as bridge period for pensionary benefit only and the District Elementary Education Officer, Golaghat is directed to take urgent step for granting provisional pension to the petitioner after completion of all due procedures as per the law in force. 7.1. Under the given facts and circumstances it is contended to dismiss both the petitions. 8. Mr. Dhar, learned counsel for the petitioner submits that the petitioner was placed under suspension w.e.f. 16.09.2006, and the said suspension order continued in force till the superannuation of the petitioner on 30.06.2014 and the petitioner is entitled to subsistence allowance for the aforementioned period. However, the petitioner has been granted subsistence allowance only for a sum of Rs.83,041/- and therefore, Mr. Dhar submits that the petitioner shall be paid the remaining amount of subsistence allowance w.e.f. 16.09.2006, till his superannuation on 30.06.2014, since the suspension order remain in force till his superannuation. 8.1 Mr. Dhar further submits that the period of suspension from 16.09.2006 to 30.06.2014 has to be regularized, so that the petitioner may get pensionary benefit for the same and unless the said period is regularized, the petitioner will not be granted pension. Mr. Dhar further submits that the aforementioned period has to be regularized by Page No.# 8/12 treating the same as on earned leave or extraordinary leave, whatsoever leave, is available in his account and he has not claimed any salary for the aforementioned period and therefore, it is contended to allow these petitions. 8.2 In support of his submission, Mr. Dhar has referred to a decision of Hon'ble Supreme Court in the case of Jaya Bhattacharya v. State of West Bengal & Ors., reported in 2025 SCC OnLine SC 434, specially paragraph Nos.11 and 12, wherein the Hon'ble Supreme Court has held as under:- “11. What is discernible from the record is that despite Tribunal's order dated 01.12.2003 directing the Collector to cause a departmental inquiry in respect of the appellant's allegations to the effect that though she joined the office and signed the attendance register she was not allowed to perform her duties and was not paid salary from May, 1987 onwards, no such inquiry was ever conducted by the respondents/authorities. Even though the order passed by the respondents/authorities on 19.05.2011 that her unauthorized absence is treated as extraordinary leave and her service is regularized was not challenged subsequently, the fact remains that the appellant has been condemned unheard without subjecting her to any departmental inquiry despite Tribunal's order. Any observation by the Tribunal or the High Court in subsequent proceedings that the appellant failed to demonstrate that she was prevented from performing her duties would not enure to the benefit of the respondents for the simple reason that the said fact could have been established either for or against the appellant only in a duly constituted departmental inquiry. The respondents' failure to conduct an inquiry as per Tribunal's order cannot shift the burden on the appellant to prove that she was prevented from working. Denial of pensionary benefits to an employee must emanate from any rule enabling the government for such denial. When the services have been regularized by treating the same as extraordinary leave the same cannot be treated as unauthorised leave for denying the pensionary benefits. The respondents could have denied the pension to the appellant by proving that she was unauthorizedly absent for the subject period and not by refusing to hold an inquiry against her. 12. In our considered view, having once regularized her service during the period of Page No.# 9/12 absence by granting extraordinary leave, it cannot be held that the said period can be treated as break in service. In the peculiar facts and circumstances of this case, we are of the considered view that the appellant would be entitled for pension. We, accordingly, direct the respondents/authorities to finalise the appellant's pension within a period of three months. However, the appellant shall not be entitled for any arrears.” 9. Per contra, Mr. Talukdar submits that the petitioner has already been paid the subsistence allowance for a sum of Rs.83,041/- including his salary and he is not entitled to pay for the suspension period w.e.f. 16.09.2006 to 30.06.2014 and for rest of the period his salary and arrear subsistence allowance have already been paid. Mr. Talukdar further submits that the petitioner is involved in a criminal case under the POCSO Act and he has been sentenced to suffer imprisonment and presently undergoing the sentence term in the jail and as such, he is not entitled to the relief as claimed in these petitions. However, to a pointed query of this Court, Mr. Talukdar submits that the suspension order was in force w.e.f. 16.09.2006 till the date of superannuation of the petitioner on 30.06.2014, and he has also produced the relevant file of the department before this Court. 10. Having heard the submission of learned counsel for both the parties, I have carefully gone through these petitions and also the documents placed on record and also perused the decision referred by Mr. Dhar, learned counsel for the petitioner. 11. The basic facts here in this case are not in dispute. The petitioner was serving as Assistant Teacher in the Thuramukh M.E. School in the district of Golaghat, which is a provincialized Upper Primary School of the State and he remained absent from duties w.e.f. 01.02.2003, for which an enquiry was conducted and the petitioner was placed under suspension on 16.09.2006 and while he was under suspension, he had retired from service on 30.06.2014 at the age of 60 years. 11.1 The contention of the petitioner is that the said suspension period has to be regularized, so as to enable him to receive the pension and if the leave is not available in his account for the aforementioned period, the same shall be regularized by granting Page No.# 10/12 extraordinary leave and that he has no claim for salary for the said period. 11.2 The law in this regard is well settled in the case of Jaya Bhattacharya (supra), wherein Hon'ble Supreme Court has held that as no enquiry was conducted by the respondent authorities, for their failure the petitioner cannot be denied the pensionary benefit and when the service has been regularized by treating the same as extraordinary leave, the same cannot be treated as unauthorized leave for denying the pensionary benefit and the respondents could have denied the pension to the appellant by proving that she was unauthorizedly absent for the subject period and not by refusing to hold an enquiry against her and thereafter, directed that the respondent authorities shall have to finalize the pension of the said appellant. 12. In the instant case also, no departmental enquiry was conducted against that the petitioner. However, it is an admitted fact that the petitioner remained absent for the said period i.e. 16.09.2006, till the date of his superannuation on 30.06.2014. The petitioner also has not been claiming any salary for the same. Under such circumstances, this Court is inclined to directed the respondent authorities to regularize the aforementioned period by granting the leave, such as, casual leave, earned leave, half pay leave and extraordinary leave, whatever leaves are available in his leave account. 13. Further, it is well settled in catena of decisions of Hon'ble Supreme Court that right to subsistence allowance is a fundamental right and it is not salary but an allowance, which is granted for survival of the suspended incumbent and his family members. In the case of Captain M. Paul Antony vs. Bharat Gold Mines Limited, reported in (1999) 3 SCC 679, Hon'ble Supreme Court while dealing with the issue, has held that non- payment of subsistence allowance, during the suspension period, violative of fundamental right to life. Relevant para is quoted herein below for ready reference:- “29. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by a “suspension syndrome” and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which Page No.# 11/12 has often resulted in suspension. Suspension notwithstanding, non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nickname of “subsistence allowance”, so that the employee may sustain himself. This Court, in O.P. Gupta v. Union of India [(1987) 4 SCC 328 : 1987 SCC (L&S) 400 : (1987) 5 ATC 14] made the following observations with regard to subsistence allowance: (SCC p. 340, para 15) “An order of suspension of a government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India [AIR 1958 SC 300 : (1959) 1 LLJ 167] is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance — generally called subsistence allowance — which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental enquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression ‘subsistence allowance’ has an undeniable penal significance. The dictionary meaning of the word ‘subsist’ as given in Shorter Oxford English Dictionary, Vol. II at p. 2171 is ‘to remain alive as on food; to continue to exist’. ‘Subsistence’ means — means of supporting life, especially a minimum livelihood.” (emphasis supplied) 30. If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non- payment of subsistence allowance can be likened to slow- poisoning as the employee, if not permitted to sustain himself on account of non-payment of subsistence allowance, would gradually starve himself to death.” 14. In the instance case, admittedly, during the subject period, with effect from Page No.# 12/12 07.03.2007, till the date his superannuation on 30.06.2014, has not been paid to the petitioner. Mr. Talukdar, learned standing counsel for the respondent-Elementary Education Department, has fairly submitted that till superannuation of the petitioner on 30.06.2014, the suspension order has not been revoked by the respondent authorities. And since the petitioner was under suspension, till his superannuation on 30.06.2014, he is entitled to subsistence allowance. Thus, non-payment of subsistence allowance to the petitioner for the subject period amounts to violation of his fundamental right, i.e. right to life as guaranteed under Article 21 of the Constitution of India. 15. In view of the given factual as well as legal matrix, the respondents have no other option but to pay the subsistence allowance to the petitioner for the aforementioned period. 16. Under the given facts and circumstances, this Court is inclined to dispose of both these petitions by granting following reliefs:- (i) The petitioner shall be granted subsistence allowance for the subject period i.e. 17.09.2006 to 30.06.2014. (ii) The said period shall be regularized by granting leave, whatsoever is available in his account, and if the same is found to be not sufficient, than extraordinary leave may be granted to the petitioner, so as to regularize the subject period, however, only for the purpose of pensionary benefit. 17. The aforementioned exercise has to be carried out within a period of 3(three) months from the date of receipt of certified copy of this order. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities within a period of one week from today. 18. In terms of above, these writ petitions stands disposed of. JUDGE Comparing Assistant