High Court
Case Details
WP(C) 1936/2006 BEFORE HON’BLE MR. JUSTICE A.K. GOSWAMI
Legal Reasoning
Heard Mr. R.M. Choudhury, learned counsel for the petitioner. Also heard Mr. J. Handique, learned State Counsel appearing for the State respondents. The original writ petitioner, namely, Anil Kalita filed the writ application und er Article 226 of the Constitution of India challenging the order dated 23.10.20 05 removing him from service consequent upon a disciplinary proceeding initiated for unauthorized absence.
Decision
During the pendency of the writ petition, the writ petitioner had expired. His w ife has substituted herself in the proceeding. The petitioner was a driver and while he was posted at No. 7 Platoon Camp at Bat talion Headquarter, Howli, in D/P No. 5/2004 a show-cause notice was issued requ iring him to show-cause under section 7 of the Police Act (Act-V of 1961) read w ith Rule 66 of Assam Police Manual Part - III and Article 311 of the Constitutio n of India, on the following charges: (cid:28)CHARGE While you were in the posted strength of No. 7 Pln. Camp - at BN. HQ. Howly. You were found unauthorized absent form the platoon post w.e.f. 23.05.2004 AM. with out any leave or permission from the competent authority. In this connection not ices vide Memo No. TF4/R-PF/3505 Dtd. 25.5.04, Memo No. TF4/R-PF/4187-88 Dtd. 29 .6.04 and Memo No. TF4/R-PF/4632 Dtd. 10.8.04 through local O/C concern but you neither reported at this BN. HQ. nor intimated anything about your so doing and remained absent till 3.9.2004 without any reason. This amounts to indiscipline a ct wilful negligence and dereliction of duty on your part. Therefore, you are charged with indiscipline act, wilful negligence and dereliction of duty rendering your liable for punishment. (cid:29) Pending drawal of disciplinary proceeding, the petitioner was placed under suspe nsion by an order dated 29.08.2004. From the original records produced by Mr. Handique, it appears that the petition er received the show-cause notice on 25.09.2004. However, the petitioner did not submit any written statement. Nonetheless, an Enquiry Officer was appointed by an order dated 19.07.2005. Thou gh the petitioner did not submit any written statement, he participated in the p roceedings at the time of examination of witnesses. 5 witnesses were examined on behalf of the prosecution and the original record shows that the petitioner had declined to cross-examine the witnesses. Evidence of Siva Konwar, who is a Havildar is to be effect that the delinquent w as absent from duty from 23.05.2004 and he had informed his superiors about it v erbally. Another witness, Chandra Kanta Basumatary, ABI deposed that till 29.06. 2004, he was in Battalion Headquarter and from 23.04.2004 to 29.06.2004, the del inquent was absent and in this connection, ABSI, Buddhadev Basumatary had writte n a letter to the Commandant. Witness Gopeswar Choudhury stated that from 23.05. 2004, delinquent Anil Kalita was absent from duty. Witness Kamal Chandra Borah s tated that as the delinquent was absent from 23.05.2004, he had given a written report (Exhibit - 2) on 26.08.2004 in this connection. Buddhadev Basumatary was also examined and he also stated that from 23.05.2004, the delinquent was absent from the camp and he had sent a report (Exhibit - 1) to the Commanding Officer. The statement of the delinquent was also recorded wherein he stated that from 23 .05.2004 till that date he had not jointed duties (this statement was recorded o n 25.09.2005). He has stated that he was under treatment of one Dr. Kanak Baruah as he was suffering from Tuberculosis and that he had informed about his sickne ss through a letter. On consideration of the materials on record, the enquiry officer held that the c harge was proved and that he was unauthorizedly absent from 23.05.2004 to 29.06. 2004. The Commandant, 4th Assam Police Task Force Battalion, Howly, on perusal of the materials on record, passed the order dated 23.10.2005 imposing penalty, relevan He will not get salary w.e.f. 23.5.2004. He will not be entitled for S.A The delinquent D/C-135 Anil Kr. Kalita is ’REMOVED’ from service with im t portion of which reads as under: (cid:28)(1) mediate effect. (2) . since he was absent without permission/Leave. (3) (4) Mr. Choudhury has submitted that the delinquent was not furnished with Enquiry R eport and he has drawn my attention to paragraph 15 of the writ petition in this context. Learned counsel submits that as the period of absence is only 36 days, for ends of justice, the order of removal, being excessive, is required to be i nterfered with. He has placed reliance on Judgment rendered in the case of Pepsu Any other amount due to him be calculated and paid. The D/P No. 5/2004 is disposed of. (cid:29) Road Transport Corporation Vs. Rawel Singh, reported in (2008) 4 SCC 42. Mr. J. Handique, learned State Counsel denies the submission of Mr. Choudhury th at the Enquiry Report was not furnished and he has taken me through the stand of the department in the Affidavit at paragraph 10. I have perused the record and have found that the petitioner had received the no tice along with the Enquiry Report on 08.10.2005. The position that has emerged from the evidence of the witnesses that before leaving the Headquarter, the deli nquent did not submit any leave application. Though, in the Enquiry Report, it i s stated that he was absent from 23.05.2004 to 29.06.2004, the same is apparentl y an inadvertent mistake on the part of Enquiry Officer as even the petitioner h ad stated that he had not resumed duty and all other witnesses had indicated tha t the petitioner had not reported for duty. May be the date 29.06.2004 is taken from the evidence of Chandra Kanta Basumatary as in his evidence, he had stated that till 29.06.2004, the petitioner had not joined. From 29.06.2004, the said w itness was not in the Headquarter and therefore, he had deposed only with regard to what was the position obtaining during the time when he was in the Headquart er. From the evidence on record, even if we ignore his absence from the date of his suspension on 29.08.2005, it is clear that till the date of issuance of the suspension order on 29.08.2004, the petitioner was unauthorisedly absent with ef fect from 23.05.2004. In Mithilesh Singh Vs. Union of India and Ors., reported in (2003) 3 SCC 309, th e Apex Court has stated that unauthorized absence from duty by a member of disci plined force may entail penalty of removal from service. Pepsu Road Transport Co rporation (Supra), on which reliance is placed by Mr. Choudhury is not attracted to the facts of this case. In view of the above, I find no merit in the present writ application and accord ingly, the same is dismissed. No cost.