High Court · 2012

HON’BLE THE CHIEF JUSTICE MR. A. K. GOEL HON’BLE MR. JUSTICE P. K. SAIKIA A.K.Goel, CJ. This appeal has been preferred against order of learned Single Judge dismissing the writ petition of the appellant against order of dismissal from service from the post of Havildar(A) in Assam Police. The appellant was working in Assam Police since the year 1999. On 28.8.2005 he w as placed under suspension pending enquiry into the alleged misconduct, inter al ia, of attempt to commit rape. The suspension was followed by charge-sheet, inte r alia, alleging that on 17.10.2005 at 1.30 A.M., he entered into the quarter of another employee by opening the door from outside and attempted to commit rape and was unauthorisedly absent since 30.10.2005. Accordingly, enquiry was conduct ed against the appellant and the charge was held to be established, after consid ering the statement of the victim Smti. Arati Basumatari, who stood by the alleg ation. After considering the said report, the disciplinary authority passed orde r of dismissal from service against the appellant on 30.10.2006. Aggrieved there by, the appellant approached this Court by way of writ petition mainly on the gr ound that though he was placed under suspension, he was not served with any char ge-sheet and was thus denied reasonable opportunity to participate in the enquir y. This stand was opposed by the respondents by filing an affidavit, stating tha t in spite of all possible efforts, the appellant deliberately avoided service a nd participation in the enquiry proceedings. Learned Single Judge, after due consideration of the rival submissions, upheld t he stand of the respondents holding that the stand of the appellant was merely a n excuse to avoid the disciplinary proceedings and thus the appellant had due op portunity to participate in the enquiry and, therefore, order of dismissal did n ot call for any interference. The finding recorded is as under : From the above narratives, I feel that although the disciplinary proceed (cid:28)12. ings against the petitioner were conducted ex-parte and the petitioner may not h ave been served with some of the documents, the said exigencies occurred, only b ecause the petitioner deliberately kept himself out of reach of the notice serve r. Because of the absence of the petitioner, some of the notices were also serve d on the petitioner’s father, and it is reasonable to assume that petitioner wou ld have been aware of receipt of such notices by his father, as it is not the ca se of the petitioner that his father had not kept him informed about the receipt of notices. Therefore, it appears to be a case of deliberate avoidance of notic e by the petitioners. 13. As it is already noted in one of the few notices, which could actually b e served on the petitioner, i.e., the notice dated 24.6.06, the petitioner had m ade an endorsement on the back of the said notice stating that because of order passed by the High Court in WP(C) 2327/06, he is not in a position to receive an y notice from the police headquarter and is also not in a position to participat e in the inquiry. The records of WP(C) 2327/06 reveals that this was a false cla im made by the petitioner. But nevertheless this indicates the state of mind of the petitioner and his attempt to avoid all communications from his employer. 14. Having regard to the above circumstances, I am of the considered view th at the petitioner deliberately kept himself out of the reach of the process serv ers and the notice servers sent by the disciplinary authority. It cannot also be said that he was unaware of the charges and the disciplinary proceeding initiat ed against him, since was already placed under suspension which he challenged in court and some of the notices were also served on his father. According to me h e deliberately created a situation whereby the disciplinary authorities had to p roceed ex-parte against him.

15. The absence of the petitioner on various dates before the Inquiry Office r on one pretext or another, as has been reflected in the petitioner’s communica tion dated 9.8.06 to the inquiry officer (Annexure-VII), clearly reveal that the re was a deliberate attempt by the petitioner to avoid participation in the Inqu iry Proceeding. In fact the petitioner also falsely represented that he is unable to receive any communication from the police headquarter and is unable to participate in the i nquiry proceeding, because of order passed by the High Court in WP(C) 2327/06. 16. In view of above, I am of the considered opinion that invoking of equita ble writ power in favour of the petitioner, to interfere with the disciplinary p roceeding and the inflicted penalty would not be justified. (cid:29) We have heard learned counsel for the appellant. Learned counsel for the State i s unable to assist the Court as she says that papers are not available with her. Learned counsel for the appellant submits that he could not remain available at his last known address and attend the headquarters, during the period of suspens ion, as he was suffering from a decease and was undergoing treatment at the Guwa hati Medical College Hospital. However, learned counsel for the appellant admits that no certificate from the Medical College Hospital has been produced nor the nature of illness which forced him to remain away from his last known address f or a long period of about one year has been specified. He also could not explain as to what type of document was necessary for reply to the charge of alleged at tempt to commit rape. The respondents have placed on record, the record of enqui ry proceedings which also includes deposition of the victim on whom rape was att empted. In absence of rebuttal of the version of the victim, the charge against the appellant stood clearly proved justifying dismissal from service. In these circumstances, plea of the appellant that he was denied reasonable oppo rtunity of being heard in the enquiry cannot be accepted. View taken by learned Single Judge does not call for any interference. The appeal is dismissed.