Page No.# 1/14 GAHC010146182024 2026:GAU-AS:7152 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) PRINCIPAL SEAT AT GUWAHATI WRIT PETITION (CIVIL) No. 3993/2024 Braj Raj Singh ……….Petitioner. -Versus- Union of India & 4 Others ………Respondents. BEFORE HON’BLE MR. JUSTICE RAJESH MAZUMDAR Advocate for the Petitioner : MR. S MITRA, MR A K BORO, MR R RAMEEZ Advocate for the Respondent : DY.S.G.I., Page No.# 2/14 MR. U K GOSWAMI. Date on which judgment was reserved: 27.02.2026 Date of pronouncement of judgment : 22.05.2026 Whether the pronouncement is of the NA operative part of the judgment? Whether the full judgment has been : Yes pronounced? JUDGMENT AND ORDER (CAV) Heard Mr. S Mitra learned counsel appearing for the petitioner. Also heard Mr. U K Goswami, learned Central Government counsel, appearing for the respondents. 2. The petitioner is serving as a Constable General Duty in the Sashastra Seema Bal. He was transferred to 15th Battalion located at Chirang, Assam, where he joined on 19th June 2017. During the course of his service, the petitioner had availed leave for 31 days commencing from the 10th of January 2019 to the 9th of February 2019 with permission to avail a suffix on the 10th of February 2019. It is the case of the petitioner that he had availed the leave for attending his ailing mother, who was later diagnosed to have been suffering from cancer, and he had to arrange for treatment at different hospitals, including the Tata Memorial Hospital at Mumbai and Homi Bhabha Cancer Hospital, Varanasi. The petitioner could Page No.# 3/14 not report back on time, and on the charges of having overstayed his sanctioned leave and not reporting for duties, he was dismissed from his service by an order dated 17 June 2019 issued by the commandant of the battalion, after holding a summary court trial. The order dated 17th June 2019 was passed in terms of Rule 21 read with Rule 18 of the Sashastra Seema Bal Rules, 2009. 3. It is the case of the petitioner that he received the notices which were served upon his home address, and on the 12th of July 2019, he addressed different applications in response to the different notices issued to him. 4. Aggrieved by the dismissal ordered dated 17.6.2019, the petitioner preferred an appeal to the appellate authority under the Rules on 6.9.2019. The appeal was, however, dismissed by an order dated 18.11.2019, upholding the order of punishment of dismissal imposed upon the petitioner. 5. Aggrieved, the petitioner preferred W.P.(C) 3983 of 2021 before this Court, challenging the dismissal order and the order of the appellate authority. By the Order dated 30.11.2023, this Court was pleased to remand the matter to the Appellate Authority by setting aside the orders passed by the aforesaid authority and with a direction to reconsider the materials placed before it and pass a fresh order after giving an opportunity to the petitioner to be heard. The relevant portion of the order dated 30.11.2023 Page No.# 4/14 is extracted below for ease of reference. “10. In so far as the first question is concerned, Section 10 read with Section 11 of the Sashastra Seema Bal Act, 2007 permits the authorities to impose the penalty of termination from service or dismissal, removal or reduction in rank in accordance with the provisions of the Act. By invoking the jurisdiction under Rule 21 read with Rule 18 of the Sashastra Seema Bal Rules, 2009, the respondent No.5 had issued the order of dismissal from service to the petitioner. If the petitioner was absent from duty after expiry of his leave period and he had neither submitted any application for leave nor did he inform the authorities as to the reason for which he was unable to join back in service it was not only justified for the disciplinary authority to initiate the aforesaid proceeding against the petitioner but such proceeding, in the opinion of this Court, was also conducted by following the due process of law. What is, however, significant to note herein that when the order of dismissal from service dated 17.06.2019 was issued, the disciplinary authority was not fully aware of the complete reality and the facts and circumstances of the case for which the petitioner had failed to join back in duty or to respond to the notices sent by the department. Such facts were, however, brought before the appellate authority wherein the petitioner had narrated in details, in his memorandum of appeal the facts and circumstances. Therefore, if not for deciding as to whether the proceeding so initiated against the petitioner was valid in law, at least for considering as to whether the penalty of dismissal from service was justified having regard to the gravity of misconduct, is a matter which definitely ought to have arisen for consideration before the appellate authority. But Page No.# 5/14 from a perusal of the order dated 18.11.2019, this Court finds that there was no proper consideration of the explanation furnished by the petitioner for his failure to report back to duty by the appellate authority. 11. Rule 29(3) of the Sashastra Seema Bal Rules, 2009 not only empowers the appellate authority to set aside an order of dismissal, removal or retirement issued under the Rule but also vests sufficient power/jurisdiction upon the appellate authority to pass such other orders as may be necessary in respect of the period of absence from duty of the person whose dismissal, removal or retirement has been set aside. Whether it is a fit case to set aside or modify the order of penalty imposed upon the petitioner is a matter, which ought to have been considered by the appellate authority, by keeping in mind the background facts and circumstances as well as the explanation furnished by the appellant. However, as has been noted herein above, no such exercise appears to have been carried out by the appellate authority while issuing the appellate order dated 18.11.2019. If that be so, the appellate remedy, being a statutory remedy provided to the petitioner, this Court is of the view that it is a clear case where the statutory right of the petitioner under Rule 29 of the Sashastra Seema Bal Rules, 2009 has been violated. 12. The appellate authority, having been enjoined with a statutory duty, must perform the same upon due application of mind on the facts and circumstances of the case and not merely mechanically affirming an order of penalty. Jurisdiction exercised by the appellate authority in such matter is quasi-judicial in nature. Therefore, the order passed by the appellate authority ought to be clothed with proper reasonings and the same must be Page No.# 6/14 passed after due consideration of all relevant materials placed before it. Failure to do so, in the opinion of this Court, would amount to improper exercise of statutory jurisdiction, thus having a vitiating effect on the order itself. 13. For the reasons mentioned herein above, the order dated 18.11.2019 passed by the appellate authority is hereby set aside. The matter is remanded back to the appellate authority to reconsider the materials placed before it and pass a fresh order after giving an opportunity of being heard to the petitioner. The aforesaid exercise be carried out and completed as expeditiously as possible, but not later than 03 (three) months from the date of receipt of a certified copy of this order. In doing so, the appellate authority may also consider whether the facts and circumstances of the case would justify imposition of any other penalty short of dismissal from service, upon the petitioner. If the petitioner continues to remain aggrieved in the matter even thereafter, it will be open for him to approach this Court once again, by filing a fresh writ petition.” 6. The Appellate Authority set aside the order dated 17.6.2019 passed by the Commandant and directed the reinstatement of the petitioner. Further directions were issued that the period between the date of dismissal from service and the date of assumption of duty subsequent to the same order would be regularized on the principles of “no work, no pay”. The appellate authority further observed that any punishment for the unauthorized leave on the petitioner could be awarded only after a trial or by observing the laid down procedure. The respondent number 5 herein, who was the Page No.# 7/14 disciplinary authority, being the Commandant of the Battalion, was given the liberty to take appropriate disciplinary or administrative action against the petitioner in accordance with the SSB Act and SSB rules after the petitioner joined his unit. 7. The Commandant of the Battalion thereafter issued an office memo dated 11.3.2024 declaring that he had provisionally concluded that the petitioner had committed an offence under section 21 of the SSB Act 2007 and further that the gravity of the offence warranted the imposition of a disciplinary action. Accordingly, the commandant proposed to conduct summary disposal and further declared that he intended to treat the period of unauthorized absence with effect from 11.2.2019 to 16.6.2019 to be regularized as dies-non for pensionary benefits. The petitioner was accorded an opportunity to make a representation on the proposed action within seven days. The petitioner filed a representation on 16.3.2024. By an order dated 20.5.24, the period of absence of the petitioner from 11.02.2019 to 16.6.2019 was regularized as dies non for all purposes. However, the same was condoned for the purposes of pension, and the pre-interruption period was also treated as qualifying service. 8. The period of absence of the petitioner from 10.1.2019 to 18.2.2024 was thus regularised in the following manner: 10.1.2019 to 10.2.2019: sanctioned leave 11.2.2019 to 16.6.2019: dies non (by the disciplinary authority for the period of Page No.# 8/14 overstay of leave till the date of his dismissal) 17.6.2019 to 18.2.2024: no work, no pay (by the appellate authority from the date of his dismissal to the date of his reporting on duty) 9. This writ petition has been filed praying for directions to the respondents to treat the period of absence from 12.07.2019 (when he for the first time replied to the show cause notices issued to him) to 31.1.2024 (the date when the appellate authority directed his reinstatement) as a period spent on duty with all consequential benefits, including seniority, back wages, increments of pay, etc. 10.At the outset, this Court notices that the petitioner has not raised a grievance against the order dated 20.5.2024, passed by the disciplinary authority, whereby the period from 11.2.2019 to 16.6.2019 has been held by the disciplinary authority to be treated as “dies non” for all purposes, except for the purposes of pension, for which it was condoned. The petitioner is aggrieved by the orders of the appellate authority in denying him the pay and allowances for the period from the day he allegedly expressed his willingness to join his duties up to the date on which he had been directed to be reinstated in service by the appellate authority. 11.Mr. Mitra, the learned counsel for the petitioner, has submitted that it is a settled position in law that when an employee expresses his desire to work, and he is kept out of service by the employer on the basis of an illegal order of termination, the employee, on his reinstatement, would be Page No.# 9/14 entitled for back wages for the period when he was denied the opportunity to work. The learned counsel has submitted that since the petitioner had submitted his application to various authorities, where some of the authorities were superior to the disciplinary authority, stating that he was desirous of joining his duties, the same were required to have been decided promptly and judiciously, which was not done in the present case. The learned counsel for the petitioner has submitted that he had preferred an appeal on 14.09.2019 against the order dated 17.6.2019 passed by the Commandant of the battalion, and the said appeal came to be dismissed only on 18.11.2019. He has submitted that it is a matter of record that by the order dated 30.1.2023, this Court had found fault with the orders passed by the appellate authority and had remanded the matter back for a fresh decision. Orders were passed by the appellate authority afresh on 31.1.2024, directing the reinstatement of the petitioner. The learned counsel has submitted that, therefore, the petitioner was obviously kept out of service till 31.1.2024, even though he has expressed his desire to serve and therefore, the petitioner would be entitled to salary and back wages for the period from the date when he first expressed his willingness to work and the date when his reinstatement was ordered. The learned counsel has submitted that the petitioner was not gainfully employed during the period when he was kept out of service, and there are specific averments made in the writ petition Page No.# 10/14 to that effect. 12.The learned counsel for the petitioner has placed reliance on the following judgments: 1. Shobha Ram Raturi vs Haryana Vidyut Prasaran Nigam Limited Reported in (2016) 16 SCC 663 2. J N Srivastava vs Union of India and others, reported in (1998) 9 SCC 559. 3. Dr. Jagomaya Saikia and others vs National Institute of Technology and others, reported in 2008 (1) GLT 215. 4. Sh K Lalmalsawma vs The State of Mizoram, reported in (2010) 1 GLR 495. 5. Mintu Konwar vs. State of Assam, reported in 2023 SCC Online Gau 4301. 6. Deepali Gundu Surwase vs Kranti Junior Adhyapak Mahavidyalaya and ors, reported in (2013) 10 SCC 324. 7. New Delhi Municipal Corporation vs Dr. Ram Naresh Sharma and others, reported in (2021) 17 SCC 642. 13.Mr U K Goswami, the learned Central Government Counsel, has submitted that it is admitted by the petitioner in his representation addressed to the respondent authorities that although he had received the notices recalling him to duty prior to his dismissal, he had failed to file any reply to any of the notices. The petitioner was dismissed from his services on 17.6.2019, Page No.# 11/14 but the petitioner has not disclosed in his writ petition as to when he received the said order. The learned counsel has also submitted that in the face of the admitted position that the petitioner had overstayed his authorised leave without any communication being made up to the date of his dismissal from service, this Court had required the appellate authority to re-evaluate its findings with reference to the grounds raised by the petitioner to explain his inability to report for duty. The fact, however remained that notwithstanding his reinstatement in service, the petitioner did not render any service and the State could not utilize the service of the petitioner from the date of his unauthorised absence till the date when he actually reported back for duty upon reinstatement. The learned counsel has submitted that there is no mistake on the part of the respondents in treating the period of his absence from the date of dismissal to the date of reinstatement on the basis of the principle of ‘no work-no pay”. He has prayed for the dismissal of the writ petition. 14.This Court has considered the submissions made by the learned counsel for the parties, and has also perused the citations relied upon by them. 15.This Court, while deciding WP(C) 3983/2021, had observed that the disciplinary authority was justified in proceeding against the petitioner and that the proceedings were conducted by following the due process of law. The fault found with the order of the appellate authority by this Court through order dated 30.11.2023 was to the extent that the said authority Page No.# 12/14 did not consider whether the petitioner had sufficient reasons for not being able to report back after expiry of the sanctioned leave. The appellate authority had then considered the same on remand and took a sympathetic and lenient view to reinstate the petitioner. The disciplinary authority was granted liberty to take appropriate administrative action in accordance with law. Thus, neither was the delinquency of the petitioner condoned nor was he exonerated of the charges. In the opinion of this Court, the reinstatement of the petitioner was not a result of any fault in the procedure adopted by the respondent authorities to keep the petitioner out of service. The petitioner had not been kept out of service illegally; rather, his reinstatement was based on sympathy and leniency. 16.It was neither pleaded nor argued that the petitioner had, at any point in time, informed the competent authorities in the department that either he was suffering unemployment during the period when he stood terminated from his service or that he was not gainfully employed and that therefore, he would be entitled to back wages on his reinstatement. This Court, in the earlier round of litigation, had observed that the departmental proceedings against the petitioner were justified and were also held in accordance with rules and therefore was not inclined to interfere with the penalty of termination imposed on the petitioner. The appellate authority was directed to consider the circumstances put forth by the petitioner and thereafter decide whether the facts and circumstances of the case would Page No.# 13/14 justify imposition of any other penalty short of dismissal from service, upon the petitioner. The appellate authority did not exonerate the petitioner but reinstated him on sympathy and leniency. The reinstatement was not because the order of termination was illegal or suffered from any procedural fault. In such circumstances, it cannot be said that in the present case, the petitioner had been kept out of his services illegally or that the authorities had wilfully refrained from utilizing the services of the petitioner. It is neither the pleaded case of the petitioner that the termination imposed upon him suffered from any illegality, nor has he pleaded any irregularity when the appellate authority reinstated him on sympathy, without exonerating him. 17.The judgments relied upon by the learned counsel for the petitioner relate to circumstances where the termination orders were interfered with by the courts of competent jurisdiction on the merits of each of the cases, thus rendering the termination assailed illegal. It is in such circumstances that the reinstated employee could claim back wages, in the event he had remained unemployed during the period when he suffered termination. The facts in the present case are different, inasmuch as the termination of the petitioner was not illegal, but he was reinstated by taking a sympathetic view. Thus, the citations relied upon by the petitioner do not aid him in his claim for payment of back wages for the period from when he expressed his willingness to join his services till the date of his actual Page No.# 14/14 reporting for services on reinstatement. 18.The order dated 31.1.2024, to the extent that it required the period from the date of dismissal from service to the date of reporting of the petitioner to his service to be regularised on the principles of no work no pay, does not require any interference. This Court has noticed that the appellate authority has directed that the petitioner would be deprived of his pay for the period from the date of dismissal to the date of reporting for duty on the principles of “no work-no pay”. Since the appellate authority has not imposed any restrictions on the other service benefits for that period, this Court therefore deems it fit, in the interest of justice, to clarify that the petitioner will not be deprived of continuity of service for the aforesaid period. 19.Writ Petition is disposed of. No costs. JUDGE Comparing Assistant