Gauhati High Court
Bolin Saikia vs The State Of Assam And 7 Ors on 6 April, 2026
Page No.# 1/11
GAHC010114652023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3630/2023
BOLIN SAIKIA
S/O LATE BOPUKON SAIKIA,
RESIDENT OF VILLAGE- NIB BOLIGAON,
P.O.- GOROKHIA DOL,
P.S.- JORHAT, DISTRICT- JORHAT,
ASSAM.
VERSUS
THE STATE OF ASSAM AND 7 ORS
(HOME AND POLITICAL DEPARTMENT)
REPRESENTED BY THE PRINCIPAL SECRETARY,
HOME AND POLITICAL DEPARTMENT,
ASSAM SECRETARIAT, CM BLOCK,
SECOND FLOOR DISPUR, GUWAHATI,
ASSAM- 781006.
2:THE DIRECTOR GENERAL OF POLICE
ASSAM
ASSAM POLICE HEADQUARTERS
ULUBARI
GUWAHATI- 781007.
3:THE INSPECTOR GENERAL OF (ADMN) ASSAM
ASSAM POLICE HEADQUARTER
ULUBARI
GUWAHATI- 781007.
4:THE DEPUTY INSPECTOR GENERAL OF POLICE (ADMN) ASSAM
ASSAM POLICE HEADQUARTERS
Page No.# 2/11
ULUBARI
GUWAHATI- 781007.
5:THE ADDITIONAL DIRECTOR GENERAL OF POLICE (SPECIAL BRANCH)
ASSAM POLICE
DPI
KAHILIPARA MAIN ROAD
KAHILIPARA
GUWAHATI- 781019
ASSAM.
6:THE DEPUTY INSPECTOR GENERAL OF POLICE
E.R.
ASSAM POLICE BATTALION
JORHAT- 781005
ASSAM
INDIA.
7:THE OFFICE OF THE COMMANDANT
3RD ASSAM POLICE BATTALION
JORHAT
781005
ASSAM
INDIA.
8:THE OFFICE OF THE ACCOUNTANT GENERAL (A AND E)
REPRESENTED BY THE PRINCIPAL ACCOUNTANT GENERAL ( A AND E)
ASSAM
MAIDAMGAON
BELTOLA
GUWAHATI- 781029
Advocate for the Petitioner : MR D S DEKA,
Advocate for the Respondent : GA, ASSAM, SC, AG
BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
ORDER
Date : 06-04-2026 Page No.# 3/11 Heard Mr. D.S. Deka, learned counsel for the petitioner. Also heard Mr. D. Bora, learned Govt. Advocate, Assam appearing for the State respondent as well as Mr. B. Chakraborty, learned standing counsel, AG(A&E), Assam.
2. The petitioner by way of instituting the present writ petition has presented a challenge to the order dated 11-05-2007, issued by the Commandant, 3 rd Assam Police Battalion, Titabar, imposing upon the petitioner a penalty of stoppage of 04 (four) annual increments with cumulative effect on conclusion of the Disciplinary Proceeding instituted against him.
3. As projected in the writ petition, the petitioner while working as Havildar/ Head Constable in the 3rd Assam Police Battalion, Titabar, in view of his unauthorized absence, came to be placed under suspension vide order dated 04-08-2006. Thereafter, a show- cause notice dated 18-08-2006 came to be issued to the petitioner invoking the provisions of the Assam Police Act read with Assam Police Manual, on the allegation of having remained under unauthorized absence. The show-cause notice also refers to the past service records of the petitioner, to the effect that he had a habitually overstayed leave, as well as deserted from lawful duties. The petitioner on receipt of the said show-cause notice submitted his reply on 04-09-2006. The reply submitted by the petitioner not having found to be satisfactory and further clarification being required, the Disciplinary Authority vide communication dated 09-09-2006 required the petitioner to submit further clarification in the matter. The petitioner, accordingly, submitted his clarification thereon.
4. In view of the shortage of manpower occasioning in the unit, the petitioner was Page No.# 4/11 reinstated in his service by revocation of his order of suspension w.e.f. 10-10-2006. Thereafter, an enquiry was held in the matter with the participation of the petitioner and on conclusion of the said enquiry, the Enquiry Officer submitted his report holding the charge levelled against the petitioner to be established. The Disciplinary Authority of the petitioner, i.e. the 3rd APBn., Titabar vide order dated 11-05-2007, proceeded to concur with the findings of the Enquiry Officer and imposed upon the petitioner, a penalty of stoppage of 04 (four) annual service increments with cumulative effect. In the said order, it was also projected that the petitioner for the misconduct committed by him was mandated to be imposed with penalty of dismissal, however, in view of the recent satisfactory conduct of the petitioner, he was given a lenient punishment. The period of suspension of the petitioner was also regularized and he was held to be entitled to only the subsistence allowance drawn for the said period. After passing of the order dated 11- 05-2007, the petitioner is found to have accepted the penalty imposed upon him. After a lapse of considerable period of time, i.e. on 16-07-2012, the petitioner is found to have instituted an appeal against the said order passed by the Disciplinary Authority imposing the penalty upon him. The said appeal, however, was not disposed of by the respondent authority. It is the said backdrop the petitioner has instituted the present writ petition.
5. Mr. D.S. Deka, learned counsel for the petitioner at the outset has submitted that the petitioner was prevented from resuming his services after availing permissible leave on account of unforeseen medical condition. The petitioner submits that while the absence of the petitioner was not intentional, however, the fact that the petitioner had remained absent cannot be disputed. He submits that in the present writ petition, the Page No.# 5/11 petitioner has assailed the order dated 11-05-2007, on the ground that the penalty as imposed upon the petitioner, i.e. withholding of increments with cumulative effect, is beyond the penalty prescribed under the provisions of Rule 66 of the Assam Police Manual Part-III. He submits that the Disciplinary Authority while imposing the said penalty upon him, could not have imposed the same with cumulative effect. Accordingly, he submits that the said penalty would mandate interference to the effect that the same was so imposed upon the petitioner with cumulative effect. With regard to a query made by this Court as regard the abnormal delay in instituting the present writ petition before this Court, assailing the order of penalty dated 11-05-2007, the learned counsel for the petitioner submits that the imposition of the penalty with cumulative effect has the effect of denying to the petitioner the benefits of the said increments for all times to come and the effect, thereof, continues even after the 04 (four) years period during which the 04 (four) annual service increments would be deducted is over. He submits that the wrong having been committed being a continuing wrong, inasmuch as, the same also, till date has the effect of preventing the petitioner from enjoying the deducted increments, the cause of action in the matter arises every month, when the salary of the petitioner is disbursed to him. Accordingly, he submits that the delay which has occasioned in the matter would not be fatal and the matter would be required to be examined by this Court on its merits. In support of his submissions the petitioner has relied upon the decisions of the Hon'ble Supreme Court in the case of Kulwant Singh Gill Vs. State of Punjab, reported in 1991 Supp (1) SCC 504, Punjab State Electricity Board Vs. Raj Kr. Goel, reported in (2014) 15 SCC 748 and UoI & Anr. Vs. Tarsem Singh, reported in Page No.# 6/11 (2008) 8 SCC 648.
6. Per contra, Mr. D. Bora, learned Govt. Advocate, Assam, appearing for the State respondent has submitted that the period of limitation for challenging the penalty imposed upon the petitioner is to be reckoned w.e.f. the date of the order, by which it was so imposed upon the delinquent. In the present case the petitioner was imposed with the penalty on 11-05-2007. He submits that in the event the petitioner desired to assail the said order, such challenge was to be made proximate to the time when the said order was issued, inasmuch as, in respect of an order of penalty, like withholding of increment, the same cannot be permitted to be assailed by a delinquent at his sweet will and in the event the delinquent assails the order after considerable period of delay, the delinquent is required to assign cogent reason, justifying the delay occasioning in the matter. He submits that in the present writ petition although the petitioner has projected that he was prevented from joining his duties after the permissible leave on account of being suffering from some medical ailments, no materials have been brought on record to justify such contention raised by the petitioner. He submits that no such material is found to have also been adduced in the enquiry held in the matter. Mr. Bora submits that the petitioner admittedly being found to be in unauthorized absence and the same being found to be in continuation of such misconduct committed by him in the past, he having not reformed, the petitioner being a member of disciplined force, the Disciplinary Authority ought to have proceeded to impose more stringent penalty like dismissal/ removal from service upon the petitioner. However, considering the subsequent good conduct of the petitioner, the Disciplinary Authority proceeded to impose upon him a lenient penalty and a penalty Page No.# 7/11 of withholding of 04 (four) annual increments with cumulative effect, came to be imposed. He submits that the appeal in the matter was preferred by the petitioner after about 05 (five) years, since the passing of the order dated 11-05-2007. The appeal in the matter was permissible to be so instituted within 03 months from the date of passing of the order by the Disciplinary Authority. He submits that in the appeal there was no reason assigned justifying the delay occasioning in preferring the same and accordingly, he submits that the condonation of delay in preferring an appeal beyond the prescribed period being the discretion of the Appellate Authority, no reason having been assigned for condonation of delay, the non-consideration of the appeal cannot be held to be erroneous by this Court. Mr. Bora has further submitted that under Rule 66 of the Assam Police Manual Part-III, the penalty of withholding of increments is described as a Major Penalty. Accordingly, the said penalty having been imposed upon the petitioner "with cumulative"
effect after a due enquiry was held in the matter, the said penalty on merits as well as on the ground of delay and laches in instituting the present writ petition, would not mandate interference from this Court. In support of his submission, Mr. Bora has placed reliance on a decision of Hon'ble Supreme Court in the case of State of Rajasthan Vs. Surji Devi reported in (2022) 1 SCC 17.
7. I have heard the learned counsel for the parties and have also perused the materials available on record.
8. The facts noticed, hereinabove, are not in dispute. The petitioner in the present writ petition has not assailed the penalty as imposed upon him vide order dated 11-05- 2007, on the ground that there was irregularities committed by the respondents while Page No.# 8/11 conducting enquiry in the matter and that he was in any manner prejudiced in defending the charges levelled against him in the enquiry so held. The petitioner has assailed the penalty only on the ground of that the withholding of the increments, could not have been so imposed with cumulative effect, under the provisions of Rule 66 of the Assam Police Manual Part-III.
9. The provision of Rule 66 mandates the penalties permissible to be so imposed upon a personnel covered by the provisions of the Assam Police Act, 1861. The penalties are so prescribed as "Major Penalties" and "Minor Penalties". Withholding of increments is placed under the heading Major Penalties, the penalty as prescribed, is "withholding of increments or promotions". Accordingly, it has to be now examined as to whether the respondent authorities could have imposed a penalty of withholding of increments with cumulative effect. The said issue is no longer res integra, the Hon'ble Supreme Court in the case of Kulwant Singh Gill (Supra), had held that the penalty of withholding of increments with cumulative effect being a Major Penalty, the same would be permissible to be so imposed, only after conducting a regular enquiry. In the case on hand, it is seen that a regular enquiry was instituted against the petitioner and it was only on the basis of the materials coming on record in the enquiry that the respondent authorities proceeded to impose upon the petitioner the penalty of withholding of 04 (four) increments with cumulative effect. Accordingly, the said penalty having been so imposed after a due Departmental Proceeding was instituted against the petitioner, this Court is of the considered view that the penalty of withholding of increments with cumulative effect was permissible to be imposed upon the petitioner in the facts and circumstances of the Page No.# 9/11 present case. It is to be noted that the decision of the Hon'ble Supreme Court in Kulwant Singh Gill (Supra) was noted with approval in the subsequent decision of the Hon'ble Supreme Court in the case of Raj Kr. Goel (Supra).
10. Having drawn the said conclusions, this Court would now examine as to whether the present writ petition would be mandated to be dismissed on the ground of delay and laches.
11. As noticed, hereinabove, the petitioner was imposed with penalty of stoppage of 04 (four) annual service increments with cumulative effect, vide order dated 11-05-2007, passed by the Disciplinary Authority. The petitioner is found to have accepted the said penalty and had preferred an appeal against the same only on 16-07-2012, i.e. much beyond the period so prescribed for assailing an order of penalty imposed by the Disciplinary Authority, before the Appellate Authority. A perusal of the said appeal as preferred by the petitioner reveals that the petitioner had not justified the delay in filing the said appeal and accordingly, even if it is to be held that the Appellate Authority had the power to condone the delay in preferring an appeal beyond the period of limitation prescribed for the purpose, in absence of any reason justifying the delay occasioning in the matter, the said delay admittedly was not permissible to be considered on merits, after the period of limitation had lapsed. The petitioner is found to have instituted the present writ petition only on 20-06-2023, i.e. after around 16 years from the date of issuance of the order of penalty dated 11-05-2007. The Hon'ble Supreme Court in the case of Surji Devi (Supra) had held that when a writ petition is found to be barred by delay and laches, the merits of the case are not required to be considered. In the said Page No.# 10/11 case before the Hon'ble Supreme Court, the order of penalty, was so assailed after around 04 (four) years from the date it was so passed. Applying the said decision to the facts of the present case, this Court finds that in view of the delay so occasioning in the matter, the contention of the petitioner would not mandate to be given a consideration on merits.
12. This Court, at this stage, would consider the contention of the learned counsel for the petitioner that on account of the nature of the penalty imposed upon the petitioner, a recurring cause of action occasions and accordingly the present writ petition although instituted belatedly, would not be hit by the principles of delay and laches. The said contention is noticed only to be rejected. The withholding of the increments with cumulative effect as ordered in the case of the petitioner being in the nature of a penalty, the same in absence of a challenge proximate to the date of issuance of the same, must be deemed to have attained its finality. This Court while considering the challenge to an order of penalty, is to consider the background leading to the issuance of the same and not the effect the same would have on the career of the delinquent. Accordingly, the long delay occasioning in instituting of the present proceeding, assailing the order dated 11- 05-2007, has in the considered view rendered the present petition to be not maintainable.
13. As noticed, hereinabove, the only ground on which the order dated 11-05-2007 was assailed is that the penalty of withholding of 04 (four) increments, could not have been imposed with cumulative effect. This Court having concluded that the said penalty of withholding of increments, was permissible to be so imposed with cumulative effect, inasmuch as, the said penalty was imposed after a departmental proceeding was instituted against the petitioner, the said ground urged by the petitioner stands rejected.
Page No.# 11/11 This Court has also concluded that the present writ petition to be hit by the principles of delay and laches and accordingly, would not mandate a consideration on merits.
14. For the reasons assigned in the foregoing paragraphs, the present writ petition is found to be devoid of any merit and the same, accordingly, stands dismissed. However, there would be no order as to costs.
JUDGE Comparing Assistant