Page No.# 1/11 GAHC010184202021 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5916/2021 DWIPEN DAS S/O LATE AHINA DAS, RESIDDENCE OF SRCB ROAD, FANCY BAZAR, PS PANBAZAR, GUWAHATI, 781001, DIST KAMRUP M ASSAM VERSUS THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE SECRETARY, URBAN DEVELOPMENT DEPARTMENT, GOVT. OF ASSAM, JANATA BHAWAN, DISPUR GUWAHATI 781006 2:THE COMMISSIONER GUWAHATI MUNICPAL CORPORATION PANBAZAR DIST KAMRUP M GUWAHATI 781001 3:THE ADDITIONAL COMMISSIONER GUWAHATI MUNICIPAL CORPORATION PANBAZAR DIST KAMRUP M GUWAHATI 781001 4:THE BRANCH OFFICER PERSONAL CELL GUWAHATI MUNICIPAL CORPORATION PANBAZAR DIST KAMRUP M GUWAHATI 781001 5:THE DIVISIONAL ENGINEER P.W DIVISION II GUWAHATI MUNICIPAL CORPORATION UZANBAZAR DIST KAMRUP M GUWAHATI 78100 Advocate for the Petitioner : MR. U DUTTA, MS. R R SAIKIA Advocate for the Respondent : GA, ASSAM, SC, GMC Page No.# 2/11 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 13.11.2025 Heard Mr. U. Dutta, learned counsel for the petitioner. Also heard Mr. S. Bora, learned Standing Counsel, Guwahati Municipal Corporation (GMC). 2. The petitioner by way of instituting the present proceeding has assailed an order dated 05.01.2021 by which the Disciplinary Authority had closed the Disciplinary Proceedings instituted against the petitioner by allowing the petitioner to rejoin his duties and by treating the period of Unauthorized absence w.e.f. 07.01.2019 till the date of passing of the order as unauthorized absence and further directing that the period of unauthorized absence would not be counted for increment, leave, D.C.R.G/pension, etc . 3. The facts requisite for adjudication of the issue arising in the present proceedings is noticed as under; The petitioner, herein, while working as peon in the Guwahati Municipal Corporation had remained on leave w.e.f 15.09.2018. He continued to remain on leave till 06.01.2019. The petitioner has projected that the said leave was necessitated on account of the ailments suffered by him at the relevant point of time. On recovery from the ailments, it is projected that the petitioner on 07.01.2019 had submitted a joining report before the Commissioner, Guwahati Municipal Corporation, however, the petitioner having remained absent from 15.09.2018, he was not allowed to resume his service. The petitioner having projected that he had remained on leave on account of the ailments suffered by Page No.# 3/11 him, the petitioner was referred to the State Standing Medical Board for examination. The said Board on examining the petitioner, found the petitioner to be suffering from the ailments as projected by him. Basing on the said report, the authorities of the GMC vide order dated 19.12.2019, proceeded to sanction to the petitioner, herein, half pay leave on medical ground for the period w.e.f. 15.09.2018 till 06.01.2019. Accordingly, it is projected that the period of absence of the petitioner w.e.f 15.09.2018 till 06.01.2019, was regularized on medical grounds. After regularization of the said report of leave, the Disciplinary Authority issued a show-cause notice dated 12.10.2020 to the petitoner and therein, alleged that the petitioner after availing Commuted Leave w.e.f. 15.09.2018 to 06.01.2019 has remained unauthorisely absent w.e.f. 07.01.2019. The petitioner submitted his reply to the said show-cause notice on 15.10.2020. The Disciplinary Authority of the petitioner without carrying out any enquiry in the matter, and holding the petitioner to have admitted to the charges leveled against him, proceeded vide order dated 05.01.2021 to close Departmental Proceedings instituted against the petitioner in the manner noticed, hereinabove. Being aggrieved the petitioner has instituted the present proceedings. 4. Mr. U. Dutta, learned counsel for the petitioner by referring to the order dated 05.01.2021, submits that the conclusion drawn, therein, by the Disciplinary Authority that the petitioner had admitted to the charges framed against him is clearly perverse, inasmuch as, in the show-cause reply dated 15.10.2020, there is no such admission apparent on the face of it. He submits that the petitioner had not Page No.# 4/11 admitted to the charges leveled against him, inasmuch as, the petitioner had already after remaining absent on medical grounds submitted his joining report on 07.01.2019, but he was not permitted to resume his services by the respondent authorities. 5. Mr. Dutta, further submits that the petitioner, herein, had retired w.e.f 31.01.2024 on reaching the age of superannuation. He submits that on account of the stipulations made in the impugned order dated 05.01.2021, the petitioner has suffered prejudice and there is a reduction in the pension and pensionary benefits as authorized to the petition, herein. 6. Mr. Dutta, further submitted that the petitioner being subjected to a Departmental Proceedings vide issuance of the show-cause notice dated 12.10.2020, the petitioner could not have been held to be unauthorisely absent from 07.01.2019 till 05.01.2021. He also submits that, the petitioner having submitted his joining report on 07.01.2019 and he being not permitted to resume his services, only on the ground that his absence from 15.09.2018 till 06.01.2019 was considered to be unauthorized, the said period of absence having been regularized by the respondent authorities, after receiving medical opinion about the ailments suffered by the petitioner, herein, the denial to the petitioner to resume his services w.e.f. 07.01.2019 is clearly arbitrary. He further submits that the petitioner being willing to resume his services after being absent on medical grounds, and he being prevented from doing so by the respondent authorities, the petitioner cannot be penalized for the said purpose. In the above premises Mr. Dutta, submits that the order dated 05.01.2021, would mandate an interference by this Court. 7. Per contra, Mr. Bora, learned counsel for the respondent at the Page No.# 5/11 outset submits that the petitioner is a habitual absentee and he had remained unauthorisely absent, for different periods over the years. He submits that the petitioner w.e.f 15.09.2018 had remained unauthorisely absent without informing the respondent authorities about the reasons of his such absence. He submits that the petitioner on submitting his joining report on 07.01.2019, was not permitted to join his services, inasmuch as, he had remained unauthorisely absent from 15.09.2018 and the reason for such absence was not established. 8. Mr. Bora submits that the petitioner after being issued a show- cause notice had submitted that his reply, thereto, on 15.10.2020 and had in the said reply admitted that the allegation leveled against him in the charge-sheet to be true. Accordingly, he submits that the petitioner having admitted to the charges framed against him, no error was committed by the Disciplinary Authorities in concluding in the order dated 05.01.2021, that the petitioner, herein, had admitted to the charges framed against him. He further submits that the Departmental authorities of the petitioner had leniently considered the matter and no penalty as such was imposed upon him. The only stipulation made in the order is to the effect that the petitioner during the period of his unauthorized absence w.e.f. 07.01.2019 would not be entitled to any pay and the period would not be reckonable for the purpose of authorizing to the petitioner increment, leave, D.C.R.G/pension, etc. He submits that admittedly the petitioner having not rendered in his service from 07.01.2019, he would not be entitled to any pay for the period till he was so reinstated in his service pursuant to the order dated 05.01.2021. In the above premises, Mr. Bora. submits that the order dated 05.01.2021, would not mandate any interference. Page No.# 6/11 9. I have heard the learned counsel for the parties and also perused the materials available on record. 10. It is an admitted position that the petitioner, herein, had remained absent without intimation w.e.f. 15.09.2018. Thereafter, the petitioner had approached the authorities with a joining report on 07.01.2019. Accordingly, the petitioner had remained absent from his duties, without intimation to the authorities w.e.f. 15.09.2018 till 06.01.2019. On the submission of the joining report on 07.01.2019, the respondent authorities did not permit the petitioner, herein, to join his service. It is seen that the petitioner along with his joining report had submitted a leave application form and a medical certificate which was however not countersigned by the Senior Medical Officer of the Respondent Corporation. 11. The petitioner having projected the reason for his absence to be on account of ailments suffered by him, the petitioner is found to have been directed to appear before the State Standing Medical Board, Assam. The petitioner, accordingly, had appeared before the State Standing Medical Board, Assam, and the Board had opined in his favour. Basing on the opinion of the said Medical Board, Assam, the Respondent Authorities vide order dated 19.12.2019, had regularized the leave of the petitioner w.e.f. 15.09.2018 to 06.01.2019, on medical grounds by granting to him half pay leave. The said period of absence having been regularized by grant of Medical Leave, has to be held to be on account of justifiable reason. 12. Having noticed the above position, this Court would now examine the show-cause notice dated 12.10.2020. The show-cause notice issued towards instituting a Departmental Proceeding against Page No.# 7/11 the petitioner, contained an allegation that he had remained unauthorisely absent w.e.f 07.01.2019 after availing Commuted Leave w.e.f. 15.09.2018 to 06.01.2019. 13. This Court notices that the petitioner on 07.01.2019 had submitted a joining report along with medical certificate and a leave application in the prescribed format. A perusal of the said joining report it is seen that an endorsement is made, therein, to the effect that the petitioner be not allowed joining, as he was absent without information. The period for which the petitioner was projected to be absent without information was the period w.e.f.15.09.2018 to 06.01.2019. The said period as noticed, hereinabove, having been subsequently regularized by grant of Commuted Leave on medical ground vide order dated 19.12.2019, the said period cannot be held to be a period of unauthorized absence by the petitioner, herein. 14. The steps taken by the petitioner, as well as by the respondents, herein, in the matter reveal that the petitioner w.e.f. 07.01.2019, was to resume his services, however, because of the doubt arising in the matter as to the reason for which the petitioner had remained absent, without information, w.e.f. 15.09.2018 to 06.01.2019, the resumption of service by the petitioner was delayed and the petitioner cannot be faulted for the same. The petitioner having submitted his joining report on 07.01.2019, it was required by the respondent authorities to permit him to resume his duties and in the event, it was considered that the petitioner had remained unauthorisely absent, it was open to the respondent authorities to place the petitioner under suspension and draw a proceedings against him, however for the reason that the petitioner was absent for the Page No.# 8/11 particular period of time, respondent authorities could not have denied to the petitioner resumption of his services. 15. 15. Having noticed the above position, this Court would now examine the order dated 05.01.2021. The said order being under challenge in the present proceedings, the same is extracted hereinbelow ; “OFFICE OF THE GUWAHATI MUNICIPAL CORPORATION:: GUWAHATI No. GPR/96/89/275/08 Date:05/01/2021 ORDER Perused the written reply in respect of the Disciplinary Proceeding drawn against Sri Dwipen Das, Peon, Division-II, G.M.C. Code No. 500755, Vide No. GPR/96/89/266-267/1227 dtd. 12-10-2020. The charges of gross negligence of duties, indiscipline and insubordination has been admitted by him. In this regard, Sri Dwipen Das, Peon, Code No. 500755 is hereby allow to join in his duties with immediate effect and the period of unauthorized absence from 07-01-2019 to till the date of joining treated as unauthorized leave without pay for all purpose like increment, leave, D.C.R.G. pension etc. and the D.P. Case drawn up against him is hereby dropped and disposed accordingly.” Sd/- Commissioner, Guwahati Municipal Corporation, Guwahati. Dated 05/01/2021 16. A perusal of the said order would bring to the forefront that the punishment imposed upon the petitioner was so done on a conclusion being reached by the Disciplinary Authority that the charges of gross negligence of duty, indiscipline and insubordination has been admitted by the petitioner in his show-cause reply. 17. As noticed hereinabove there was no enquiry held prior to issuance of the order dated 05.01.2021. The above being the conclusions drawn in the order dated 05.01.2021 by the Disciplinary Authority, this Court would now consider the show- Page No.# 9/11 cause reply submitted in the matter by the petitioner on 15.10.2020. On a perusal of the show-cause reply, this Court finds that the petitioner had made the following contentions; “With due to respect, I have the honour to inform you that, the charge sheet and statement of allegation received accordingly. As per charge with statement of allegation is true as charge framed against me. That Sir, I informed you that, I have been availed as Commuted leave on medical ground due to illness suffered w.e.f. 15-09-2018 to 06- 01-2019 by Piles & Jandish. The disease duly examined reported by Chairman, State Standing Medical Board & Addl. Director of Health Services (G) Assam, Hengrabari, along with certificate issued by the same. Sir, I applied for joining in my duties on 07.01.2019 after availing leave though not allowed to join by the concern superior. There after another joining letter submitted in the central Registry Branch on the same day. Till today, I am waiting for order to join in my duty. Sir, I am an employee without getting salary for 21 months. I am unable to carry on my family having 3 children reading in the College with serious Financial problem also unable to provide better treatment of my wife who is suffering serious disease. Now, I request you to consider and allow me to join in my duties. I shall ever remain faithful to you.” On a perusal of the contentions made in the show-cause reply, this Court is of the view that the statements made, therein, to the following “As per charge with statement of allegation is true as charge framed against me.” cannot be construed to be an admission by the petitioner with regard to the charges framed against him in the show-cause notice dated 12.10.2020. The petitioner, herein, is found to have signed the said show-cause reply in vernacular, whereas the show- cause reply had been typed out in English. The petitioner is a peon and knowledge cannot be attributed to the petitioner about the niceties of a Departmental Proceedings. There being no clear Page No.# 10/11 admission on the part of the petitioner with regard to the charges framed against him in the show-cause notice dated 12.10.2020, such admission also not being found by this Court, in the show-cause reply, the respondent authorities could not have proceeded to impose upon the petitioner, the punishment as imposed vide the order dated 05.01.2021, without first holding an enquiry in the matter by providing opportunity of hearing to the petitioner, herein. 18. This Court not having found any admission by the petitioner to the charges framed against him vide the show-cause notice dated 12.10.2020, this Court is of the considered view that the conclusion drawn by the disciplinary authority of the charges being admitted to by the petitioner in his show-cause reply, would not mandate an acceptance and accordingly, the impugned order dated 05.01.2021 being solely based on conclusion that the petitioner had admitted the charges framed against him, the same would mandate an interference. 19. The petitioner having submitted his joining report dated 07.01.2019, the respondent authorities having not placed the petitioner under suspension, he could not have been prevented from joining services. This Court is of the considered view that the petitioner being available for joining in his services, the period of his such absence from duties w.e.f 07.01.2019 to 05.01.2021, has to be regularized as on duty and consequential monetary benefits flowing to the petitioner, on account of such regularization of his services as on duty w.e.f 07.01.2019 till 05.01.2021 is required to be released to him. 20. In view of the above discussion, this Court passes the following directions; (i) The order dated 05.01.2021, stands set aside; (ii) The period of absence of the petitioner w.e.f. 07.01.2019 to Page No.# 11/11 05.01.2021 be deemed to be regularized as on duty and the petitioner be released his pay and allowances, along with due annual increments, for the said period; (iii) The pay of the petitioner on resumption of his services, in pursuance to the order dated 05.01.2021 be fixed by reckoning the annual increments due to the petitioner for the period 07.01.2019 to 05.01.2021 and the petitioner on such fixation, be released his arrears of pay till the date of his superannuation from service; (iv) The pension and pensionary benefits receivable by the petitioner be re-computed upon implementation of the directions passed by this Court, hereinabove under (ii) & (iii) ; (v) The petitioner be released his arrears of pay and allowances, as well as pension and pensionary benefits, flowing to the petitioner in terms of the directions nos.(ii), (iii) and (iv) above, within a period of 4(four) months from the date of receipt of a certified copy of this order. 21. With the above observations and directions the present Writ Petition stands allowed. JUDGE Comparing Assistant