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HC orders Police Department to pay arrears to Constable within 90 day

Nagaland News

DIMAPUR, AUGUST 17: The Kohima Bench of Gauhati High Court on Thursday ordered Nagaland Police to pay within 90 days the full salary and allowances entitled to one of its personnel during his period of suspension stretching for nearly 7 years.
“The State respondents are directed to pay the full salary/pay and allowances to the petitioner for the period from December 28, 2013 to November 7, 2020 after adjustment of the amount already paid to the petitioner towards subsistence allowance.
“The arrear salary/pay and allowances shall be paid by the State respondents within a period of 90 days from the date of passing of this order, failing which the State respondents shall have to pay interest at the rate of 9% p.a. on the arrear amount from the date of filing of the present petition till final payment”, stated a judgement passed by Justice Kakheto Sema.
Background
The case pertains to a petition filed in 2021 by a former Constable named Takamongba Ao. “The case in brief is that the petitioner was appointed as Constable in the Police Department in the year 1999 and posted under the establishment of the respondent No.4 i.e. the Inspector General of Police (INT), Nagaland, Kohima.
“Thereafter, in the year 2008, the petitioner was attached to the Special Branch (INT) Dimapur, and served in that capacity till the petitioner voluntarily retired from service on September 6, 2021. It is the case of the petitioner that while he was posted at Dimapur he used to purchase firewood from the bordering area of Karbi Anglong (Assam) by cash payment as well as by making advance payment to the seller. On December 28, 2013, when the petitioner went to collect firewood at Kania Tokbi Goan from one John Kathar to whom the payment for the firewood was made in advance, an argument ensued as the said John Kathar demanded more money for the firewood”, it stated.
In the midst of the argument, some unknown person hit the petitioner on his head from behind rendering him unconscious. When the petitioner regained consciousness, he found himself at the Dillai Police Station in Assam.
He also came to know that a criminal case against him had been lodged at the same police station on the basis of an FIR filed by John Kathar “alleging that the petitioner and one Islam Choudhury were caught while stealing firewood from Kania Tokbi Goan and the petitioner had opened fire at the complainant and his friends with the intention to kill them”.
Consequently, the IGP (INT) issued an order on January 31, 2014, placing the petitioner under suspension with effect from December 28, 2013. It stated that during the period of suspension, the petitioner would be entitled to draw subsistence allowance at an amount equal to the leave salary ‘he would have drawn if he had been on leave on half pay, additional dearness allowances and other allowances as admissible from time to time’.
In the meanwhile, a departmental enquiry arrived at the conclusion that in absence of independent witnesses, the charges framed against the petitioner cannot be proved. So the IGP issued an order on November 7, 2020, revoking the suspension of the petitioner and re-instating his service with immediate effect.
“The order dated November 7, 2020, however provided that the subsistence allowance paid to the petitioner during his suspension period will remain as such till culmination of the criminal case. Subsequently by the judgment dated February 25, 2021, the criminal case pending against the petitioner was also disposed of by the court of the learned Sessions Judge, Karbi Anglong, Diphu, Assam, acquitting the petitioner from the criminal liabilities of the case on benefit of doubt”, it stated.
Upon acquittal, the petitioner submitted a representation to the IGP on August 26, 2021, seeking a review of the November 7, 2020 order for payment of arrear pay, allowances and other service benefits.
The IGP then responded with an order on September 6, 2021, allowing the petitioner to draw the full pay and allowances w.e.f. the date of his re-instatement in service i.e. November 7, 2020 but denying him the arrear pay and allowances for the period of his suspension on the grounds that “as the acquittal of the petitioner was on benefit of doubt, the suspension was a justified suspension”.
Judgment
Justice Sema, in his verdict, made it clear that the Sessions Judge of Karbi Anglong had acquitted the petitioner only after considering the prosecution evidence on record and after arriving at the conclusion that the prosecution failed to prove the case against the petitioner beyond all reasonable doubt.
“The State respondents however without reading the entire judgment dated February 25, 2021, has only relied/extracted the word ‘acquitted on benefit of doubt’ from paragraph-33 of the said judgment, in the impugned order dated September 6, 2021, to deny full pay and allowances to the petitioner during the period of suspension, which according to this Court is unreasonable and not legally justifiable”, the order stated.
He also cited the Supreme Court’s position that the question of back wages would be considered only if the authorities have taken action by way of disciplinary proceedings, the action was found to be unsustainable in law, and the employee was unlawfully prevented from discharging the duties.
“The present case is not about a claim for back wages on the ground that the disciplinary proceedings initiated against the petitioner was unsustainable in law, but the claim for payment of arrear salary/pay and allowances for the period of suspension, on the ground that the departmental enquiry instituted against the petitioner was dropped for failing to prove the charges, and the criminal case registered against the petitioner also ended in acquittal as the prosecution failed to prove the case against the petitioner beyond all reasonable doubt, thus declaring the innocence of the petitioner.
“The question therefore raised by the State that the petitioner is not entitled to receive the back wages is therefore not relevant in the context of the present case”, he ruled.
(Page News Service)

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