WA 138/2017. Gauhati High Court

Case Number:WA 138/2017
Judgement Date:May 15, 2019
Court:Gauhati High Court
SUMMARY

Writ Appeals under the Gauhati High Court Rules

 
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WA No.138 of 2017

BEFORE

HON’BLE THE CHI EF JUSTI CE MR. AJI T SI NGH HON’BLE MR. JUSTI CE MANOJI T BHUYAN

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( Aj it Sin gh , C.J.)

Mr. S.C.Keyal, learned Assistant Solicitor General of I ndia for the appellants.

None appears for the Respondent.

Heard on admission.

This intra court appeal is directed against the order dated 3.12.2015 passed by the learned Single Judge of this High Court, whereby he has allowed respondent’s WP(C) Nos. 5759/ 2010 and 2907/ 2009.

Respondent’s husband, namely, Samet Chandra Bordoloi had joined Assam Rifles on 16.9.1980 as Havildar. He availed leave from 4.5.2000 to

9.5.2000 and was supposed to resume duty on 10.5.2000 but he was diagnosed as suffering from serious tuberculosis disease. He therefore could not resume duty. He after recovery reported to resume duty and the authorities declined to accept his joining as he had overstayed his leave. Aggrieved, he filed WP(C) 3565/ 2002 before this court seeking direction against the appellants to allow him to join his duty. Sadly, during the pendency of his writ petition, Samet Chandra Bordoloi died on 19.8.2004 due to illness. The respondent is his widow and she applied for substitution of her name in the writ petition. The appellants contested the writ petition by stating that Samet Chandra Bordoloi had been declared deserter vide order dated 10.5.2000. This court dismissed the writ petition vide order dated

6.6.2007 on the ground that since Samet Chandra Bordoloi has died no direction can be issued for resumption of duty. The court, however, gave liberty to the respondent to file appropriate writ petition for financial benefits in accordance with law.

The respondent, therefore, filed WP(C) No.2907/ 2009. I n this petition, the appellants filed an affidavit stating therein that the Commandant of 10th

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Assam Rifles vide order dated 31.8.2005 has dismissed Samet Chandra Bordoloi from service with effect from 11.5.2005. This led to filing of WP(C) No.5759/ 2010 by the respondent assailing the legal validity of order dated

31.8.2005. The learned Single Judge by the impugned order has allowed both WP(C) Nos.2907/ 2009 and 5759/ 2010 holding that in the fact situation of the case Samet Chandra Bordoloi could not have been declared deserter as he suffered from serious disease like tuberculosis and later even died. According to the learned Single Judge every over-stay of leave cannot be treated desertion, for, there must be wilful abandonment of...

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