High Court · 2012

I have heard Ms. P Chakraborty, learned counsel appearing for the petiti 2. oner. Also heard Ms. HM Phukan, learned Govt. Advocate, Assam for the respondent s.

3. In brief, pleaded fact of the petitioner’s case is that he was appointed as a constable on 04.02.1996 under the Assam Police. However, he fell sick in t he year 2006 and was suffering from malaria for a longtime and again in the year 2009 for Intestinal Tuberculosis. The petitioner has annexed a Discharge Slip i ssued by the Medical Officer of Kushal Konwar Civil Hospital, Golaghat as a proo f of his treatment for the said disease. On recovery, the petitioner submitted h is joining report to the Commandant 3rd AP Bn., Titabor, who reportedly refused to allow the petitioner to join and instead initiated departmental proceeding fo r his unauthorized absence by issuing a show cause notice intimating him on 13.1 2.2008 regarding initiation of the departmental proceeding No.24/2008. Thereafte r, vide Memo dated 05.01.2009 another notice was issued to him stating that neit her he reported for joining his duties nor had sent any communication which amou nted to gross indiscipline conduct and dereliction of Government duties. Hence, he was asked to resume his duties within 10 (ten) days and thereafter also to su bmit his written explanation in respect of the departmental proceeding No.24/200 8 failing which the same would be enquired ex-parte aiming discharge from servic e. This was followed by a final show cause notice dated 22.05.2009 issued by the same respondent No.4 (Commandant 3rd AP Bn.) inter alia, stating that as per fi ndings of the Disciplinary Proceeding No.24/2008 submitted by the Enquiry Office r, the gross indiscipline conduct of the petitioner by way of remaining unauthor izedly absent beyond the prescribed period was proved whereby he was considered as unsuitable to remain in Police Force. The petitioner was thus directed to sub mit his written explaination within 3 days of the receipt of the notice as to wh y he should not be dismissed from service within immediate effect in the interes t of the Police Force and public service. The aforesaid Office Memo referred to the remarks passed by the respondent No.4, which reveals that the petitioner was directed to produce all the relevant prescription, cash memos in proof of purch ase of medicines within three days, failing which documents (Xerox) submitted by the petitioner would be treated as invalid and doubtful and action will be take n on that basis. On receipt of this show cause notice, the petitioner appeared b efore the respondent and produced all the documents while the respondents report edly insisted for production of original documents within 2 hours which was not possible for the petitioner, since he was taking treatment at Golaghat. Conseque ntly, by an order contained in Memo dated 30.05.2009 (Annexure 6 to the writ pet ition). The Commandant 3rd AP.Bn removed the petitioner from service taking into account the punishment mooted on him by an earlier Disciplinary Proceeding Nos. 23/2006 and 3/2008 as well as the charges proved in course of Disciplinary Proc eeding No.24/2008. However, there is no material disclosed in the pleading of th e writ petition regarding the said earlier Disciplinary Proceedings against him. It is the case of the petitioner that the respondent No.4 had proceeded against him without following the legal requirements enjoined by the Assam Services Dis cipline and Appeal Rules, 1964 as well as the mandates of Articles 311 of the Co nstitution of India. Violation of the mandates of Sec.29 of the Assam Police Act , 1861 has also been alleged.

4. An affidavit-in-opposition has been filed on behalf of respondent No.4 b y the Assistant Commandant of 3rd AP.Bn, Titabor inter alia, disclosing as follo ws: (a). That the petitioner was awarded punishment of stoppage of 2 service increments with cumulative effect in the year 2006 vide Disciplinary Proceeding No.23 of 2006. (b). That the petitioner was found to have absented himself unauthorized ly for 271 days from his posting for which Disciplinary Proceeding No.24 of 2008 was drawn up against him. (c). That the petitioner have not produced genuine Medicinal Certificate to prove his treatment of Intestinal Tuberculosis. (d). That the writ petitioner did not submit reply to the show cause not ice of Disciplinary Proceeding No.24 of 2008 inspite of repeated notices for whi ch the enquiry was disposed of ex-parte against the petitioner. As per direction of the Court, the learned State counsel has produced th 5. e relevant records in connection with DP No.24/2008. I have perused the records so submitted. Annexure 4 to the writ petition i.e. the letter dated 05.01.2009 issued 6. by the Disciplinary Authority speaks of issue of the first Show Cause Notice. Ho wever, neither in the writ petition nor the affidavit-in-opposition filed on beh alf of the respondent No.4 reveals any material regarding service of the same on the delinquent constable i.e., the writ petitioner. Even the record does not re veal any proof of such service. Although both the writ petitioner and the answer ing respondent No.4 plead in unison that the enquiry proceeded ex-parte against the writ petitioner i.e., the charged employee, the record of Disciplinary Proce eding reveals that below each and every statement of the prosecution witnesses a prototype insertion appears with signature of the writ petitioner showing that cross-examination of the said prosecution witnesses was declined by him. That ap art there is also nothing on record even to remotely suggest that the enquiry re port was made available to the writ petitioner before the extreme penalty of rem oval from service was imposed on him. Finally, contrary to the specific stand of the respondent No.4 reflected in Para 5 of the affidavit that the writ petition er had not produced genuine Medical Certificate to prove his treatment of Intest inal Tuberculosis, the record of Disciplinary Proceeding produced before this Co urt reveals that on an enquiry solicited by the Office of the respondent No.4, t he Registrar of Gauhati Medical College vide a letter dated 02.04.2009 had repor ted back that the Medical Reports submitted by the writ petitioner were authenti c and genuine.

7. It is true that the standard of service required and expected from a mem ber of any Disciplined Force, the protection of Article 311 of the Constitution of India and the other procedural laws entitling the public servants of the safe guards thereof cannot be diluted or denied by any Disciplinary Authority. The ba sic tenets of the Rules of Natural Justice and Fairplay would require the Discip linary Authority to prove that the proceeding had to be conducted ex-parte on th e folly of the delinquent employee on whom the show cause notice was served duly to which no response was made by the charged employee. In the instant case, the re is no specific assertion either in the pleadings of the respondent No.4 to th e effect that the show cause notice containing charges and statement of allegati ons was served upon the delinquent employee. It appears that the charged employe e i.e. the writ petitioner participated in the enquiry as his endorsement to the effect of his declining to cross examine prosecution witnesses has been recorde d. It is also not clear as to whether defense assistance, if any, was ever allow ed to him in course of the Disciplinary Proceeding. Finally, no due opportunity even to represent against the findings of the enquiry officer or the punishment proposed on the basis of the findings of the enquiry officer had been afforded t o the writ petitioner, inasmuch as, no copy of the enquiry report was furnished to him. The culmination of all these definitely vitiate the entire Disciplinary Proceeding rendering the final order of imposition of punishment of removal from service dated 30.05.2009 unsustainable in law.

8. This Court is thus left with the inevitable conclusion to set aside the impugned order. Accordingly, the impugned order dated 30.05.2009 is set side and quashed. The writ petitioner shall be reinstated in the service immediately. Th e period of alleged absence of the petitioner shall also be subject to such furt her order that may be passed by the Disciplinary Authority afresh in accordance with law. However, under the circumstances the petitioner shall not be entitled to any back wages.

9. ts. The writ petition is allowed to the extent indicated hereinabove. No cos