High Court
Case Details
WP(C) 5526/2007 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER The order dated 05.12.2006 passed by the disciplinary authority dismissi ng the petitioner from service in a disciplinary proceeding which was affirmed b y the appellate authority vide order dated 28.08.2007 are put to challenge in th e instant writ proceeding seeking judicial review of the orders as indicated abo ve. 2. Heard Mr. BD Goswami, learned counsel appearing for the petitioner. Also heard Mr. RK Bora, learned Additional Senior Govt. Advocate, Assam appearing f or the State respondents. 3. ized hereinbelow: -
Legal Reasoning
The brief facts as pleaded and established in the instant case is summar The petitioner was appointed as a constable in the Assam Police Service on 20.04.1992 and posted at 11th Assam Police Battalion at Dergaon. However, whi le discharging his duties, a complaint was lodged against him on 08.01.2006 wher eupon he was taken to Dergaon Public Health Centre and after examining him, the Doctor opined that the petitioner was under the influence of liquor and as a con sequence thereof the authority vide B.O. No. 49 dated 9.01.2006 awarded him 8 da ys P.D., but he could carry out only for 5 days due to his severe illness. The o rder dated 09.01.2006 was followed by another order issued on the same date (09. 01.2006), whereby the petitioner was transferred and posted to 20 Platoon Camp, Patarkuchi under Basistha Police Station and accordingly the Command Certificate was issued on 08.02.2006, which, however, he received only on 14.02.2006 but co uld not move to his place of posting due to his deteriorating health condition a s he was under treatment of the Medical Officer of Health Centre of 11th Assam P olice Battalion at Dergaon who had referred him to Jorhat Civil Hospital for tre atment on 23.02.2006 and accordingly he was treated as Sanjivani Hospital at Jor hat wherefrom he was discharged on 25.02.2006. While he was discharged from the hospital the attending doctors advised him rest for 4 (four) weeks and according ly he applied leave of absence for 4 (four) weeks to his superior officer. 4. When the matter rested as thus, the disciplinary authority placed the pe titioner under suspension vide B.O. No. 566 dated 10.03.2006 pending drawal of d isciplinary proceeding. The disciplinary authority issued 1st Show Cause Notice on 17.03.2006 being Departmental Proceeding (’DP’ for short) No. 02/06 under Sec tion 7 of the Police Act (Act V of 1861) read with Rule 66 of the Assam Police M anual Part III and Article 311 of the Constitution of India for showing causes a s to why any of the penalties prescribed therein should not be inflicted on him on the charges framed in the statement of allegation attached thereto asking him to submit written statement in defence within ten days from the date of receipt of the communication provided he does not intend to inspect the documents which have relevance with the issue under enquiry further making it clear that, in ca se he intends to inspect the documents he should write to the Commandant, 11th A .P. Battalion, Dergaon for the same within seven days from the date of receipt o f the communication and submit his explanation thereafter within ten days of the date of completion of the inspection. The show cause notice further indicates a s to whether the delinquent desires to be heard in person which should also be s ubmitted to the disciplinary authority within the time specified. 5. Altogether 4 (four) charges were leveled against the petitioner in the s how cause notice dated 17.03.2006. The charges alongwith (cid:28)Imputation of Miscondu ct (cid:29) are quoted hereunder: - (cid:28)(1) On 08.01.2006, you create nuisance at your Govt. Quarter misbehave to th You have awarded 8 (eight) days P.D. instead of 14 (fourteen) days but y e nieghbours for which you have medically examined when doctor opined that you w ere under the influence of liquor and kept in the police custody for the night. (2) ou have executed only 5 (five) dates P.D. (vide B.O. No. 49 dated 09.01.2006) (3) You were transferred and posted to No. 28 Platoon Camp Patorkuchi under Basistha P.S. and issued to Command certificate on 08.02.2006 to his place of po sting but you had refused to receive the Command Certificate and left Reserve Of fice; (4) On 14.02.2006 you appeared at the Reserve Office and duly received Comma nd Certificate and you were directed to join immediately at the place of posting . But till the date of suspension you have failed to carry out the lawful order of the competent authority and refrain to join the new place of posting. Hence you are charges with: - (i) Disobedience to lawful order and (ii) Gross indiscipline and misconduct. (cid:29) 6. The petitioner submitted his written statement of defence along with the list of documents contending inter alia in a nutshell against the four (4) char ges as follows: - In respect of charge no. 1, the petitioner denied the charge of misbehav (1) iour with his neighbours on 08.01.2006 as alleged, whereof he was forced to exam ine by the Medical Officer, Dergaon S.H.C. in spite of informing the Medical Off icer that he was suffering from ailments and was under treatment of Medical Offi cer, 11th A.P. Bn and the opinion by the doctor has been formed without followin g the procedure as provided under the Medical Rules and hence denied the charge; (2) Relating to charge No. 2, the petitioner has submitted that though he wa s awarded 8 (eight) days P.D. but could complete only 5 (five) days P.D. and the rest could not be completed due to extreme weakness of his physical condition; (3) The petitioner in reply to charge nos. 3 and 4 had explained the circums tances which was beyond his control because of his various ailments which would reveal that he was under treatment of their Medical Officer wherefor he had requ ested his R.O. not to issue the Command Certificate and thereby denied the alleg ation of refusal to accept the Command Certificate but could not go to the place of posting due to ailment and before he joined in the transferred place of post ing, he was put under suspension. Further the petitioner in his written statement of defence had explained that he was suffering from ailment prior to 08.01.2006 and was under the treatm ent of Medical Officer of 11th A.P. Battalion, but the Medical Officer of A.P. B n referred his case to Jorhat Civil Hospital for needful, wherein he was thoroug hly examined in the Sanjeevani Hospital and the Medical Officer of Sanjeevani Ho spital issued a certificate on 25.02.2006 advising him rest of four weeks. Under these circumstances, he could not go to the place of posting which was not inte ntional and thereby requested to consider his case on humanitarian ground and dr opped the case in order to enable him to join in the new place of posting. Along with the written statement of defence he had submitted all the pho tocopies of his prescriptions with a request to allow him to submit the original s at the time of hearing. The disciplinary authority on receipt of the written statement in defenc 7. e proceeded to hold the enquiry and accordingly an Enquiry Officer was appointed . The Enquiry Officer examined 5 (five) witnesses viz., (1) Dr. Gunattam Borah, P.T.C. Hospital, (2) Inspector Dimbeswar Bhuyan, R.I. 11th A.P. Bn. Dergaon, (3) Hav/Clerk Atul Pator 11th A.P. Bn., Dergaon, (4) B.H.M. Khogen Ch. Roy, 11th A. P. Bn., Dergaon and (5) A.S.I. Gobin Ch. Das, Dergaon P.S. along with Exhibits, 6 (six) in numbers. Dr. Gunattam Borah was examined as P.W. 1, who deposed that while he was working at Dergaon S.H.C. on 08.01.2006, he had examined the delinq uent who was under the influence of liquor and advised to keep him under custody of Dergaon P.S. for the night. Ext I is his report of medical examination and E xt. 1(1) is his signature. Inspector Dimbeshwar Bhuyan was examined as PW2, who had deposed about the incident occurred on 08.01.2006 and medical examination of the petitioner b y Doctor and the subsequent events of award of Quarter Guard with P.D. for two h ours per day and posting to 28 Platoon on 08.02.2006 which the petitioner refus ed to receive but ultimately accepted the Command Certificate on 14.02.2006, but he did not join in the place of posting rather he had applied for 28 days Med ical leave with detailed report, wherefor the Commandant ordered to issue Show Cause Notice which was done accordingly and in the meantime he was put under sus pension on 10.03.2006 and D/P No. 2/06 was drawn against the petitioner. Ext. 5 is the repot and Ext. 5(A) is his signature. Hav/Clerk Atul Pator was examined as PW 3, who proved that the delinquen t was posted at Platoon No. 28 from Hqr. and accordingly he told the delinquent to receive his Command Certificate which he had collected on 14.02.2006, but lat er on, an application was received from the delinquent on 28.02.2006, wherein he explained about his illness and the same was reported to C.O. who suspended the delinquent on 10.03.2006. PW 4, BHM Khagen Ch. Roy had deposed that the incident occurred on 08.01 .2006. For the same, the delinquent was examined by the Doctor and the C.O. orde red 14 days Quarter Guard along with 2 hours P.D. per day but the Medical Office r on completion of 5 days P.D. recommended for exemption of remaining P.D.’s for his illness and then he was posted at Platoon on 08.02.2006. The petitioner did not receive the Command Certificate, which, however, he received on 14.02.2006 but did not join in the place of posting whereby he was put under suspension. ASI Gobin Ch. Das of Dergaon P.S. was examined as P.W. 5 who deposed tha t on 08.01.2006 Hav Krishna Doley, NK Rameshwar Rajput, NK Kolamon Doley and CN Tonkeswar Gogoi of 11th A.P. Bn. Dergaon handed over the delinquent at the Derga on P.S. who was medically examined by Doctor G. Borah. The Enquiry Officer thereafter submitted his report stating that he ex 8. amined the above witnesses in presence of the delinquent who was given chance to cross-examine the PWs to which he declined. Moreover, the delinquent was giv en chance to produce witnesses on his behalf but he failed to produce the witnes ses and accordingly held that the charges of disobedience and indiscipline condu ct brought against the delinquent have been established beyond reasonable doubt. On receipt of the report submitted by the Enquiry Officer, the discipli 9. nary authority issued 2nd Show Cause Notice on 29.11.2006 asking him to show cau se, if any, against the action proposed to be taken for dismissal of service as agreed with the findings of the Enquiry Officer within 7(seven) days from the d ate of receipt of the communication. On receipt of the 2nd Show Cause Notice the delinquent submitted his representation on 04.12.2006 referring the explanation of the 1st Show Cause Notice contending that he being a constable serving in th e battalion, he does not know the art of cross-examination and to adduce evidenc e in defence. Therefore, not being aware of the procedure and formalities, thoug h he had the original Medical Certificates, he could not produce the same at the enquiry. But the fact remains that he was suffering from illness which he had e xplained in his Written Statement of defence along with the photocopies of all t he Medical Certificates, but the Enquiry Officer did not make any endeavour to c onsider the same, which resulted in grave error in holding that the charges have been proved causing injustice to the poor employee which require consideration in the interest of justice. The disciplinary authority took up the 2nd Show Cause Notice for conside 10. ration. However, the authority did not accept the grievance raised by the petiti oner and held that though the delinquent is a member of the disciplined force bu t no sign of improvement was noticed during the suspension period as he was foun d absence during roll calls on several occasion and he created nuisance which is a common feature and so retention of delinquent in service will harm others and hence the decision of dismissing him from service remained as it is and the
Decision
delinquent was dismissed from service with immediate effect i.e. 05.12.2006 in connection with D/P No. 2/06 for his disobedience to lawful orders, gross indisc ipline and misconduct and he has been debarred from getting any financial benefi t except the subsistence allowance and accordingly disposed of the disciplinary proceeding. 11. Against the order of dismissal from service with the effect from 05.12.2 006 passed by the disciplinary authority, the delinquent submitted his statutor y appeal before the appellate authority contending the following points for cons ideration: - (a) The allegations of creating nuisance in a drunken condition in the quart er has not been proved by examining the neighbouring people living along with hi s quarter and medical examination was not done as per prevalent procedure which the Enquiry Officer as well as disciplinary authority failed to consider which r esulted gross injustice to him. (b) The non-execution of P.D., non-receipt of Command Certificate and non-jo ining in the place of posting has been detailed in his Written Statement in defe nce, which the Enquiry Officer and the disciplinary authority failed to consider and thus resulted in gross injustice to him. (c) The Enquiry Officer did not inform him his right to take assistance of h is fellow colleagues and/or persons having knowledge of the disciplinary proceed ing and its procedure which prejudiced him in conducting the disciplinary procee ding. (d) Non consideration of the Medical Certificate submitted by him along with the Written Statement both by the Enquiry Officer and the Disciplinary Authorit y caused great injustice to him require interference by the appellate authority. The appellate authority considered the appeal of the delinquent and vid 12. e order dated 28.08.2007 upheld the order of dismissal from service as passed by the disciplinary authority holding that the delinquent was awarded 8 days P.D. for causing nuisance under influence of liquor on 08.01.2006 but carried only 5(five) days P.D. which followed the Command Certificate dated 08.02.2006 post ing him at 28 Platoon located at Patorkuchi but he refused to receive the Comman d Certificate though he received the Command Certificate on 14.02.2006 but he di d not carry out the order, therefore he was charged with disobedience and gross indiscipline and misconduct which the Enquiry Officer found proved during the En quiry in spite of giving all reasonable opportunity to the delinquent and as suc h he was dismissed from service by the disciplinary authority which do not dese rve to be interfered with and thereby dismissed the appeal and hence the writ p etition for judicial review of the order as indicated hereinabove. 13. Mr. Goswami, learned counsel while advancing the argument on behalf of t he petitioner would contend that the order of dismissal from service by the disc iplinary authority on the basis of the enquiry report submitted by the Enquiry Officer and affirmed by the appellate authority cannot be sustained in view of t he fact that the Enquiry Officer has failed to consider the evidence of PWs 3 a nd 4 which amply demonstrate that the petitioner was suffering from various ai lments and a reading of written statement in defence along with the medical cert ificates submitted supported the case of the petitioner which require interferen ce being total non-application of mind in arriving at the conclusion that the ch arges were proved. 14. Mr. Goswami would further contend that there is a flaw in conducting the disciplinary proceeding in not informing the petitioner of his right to take th e assistance of his fellow colleagues in the proceeding, which caused prejudice to the petitioner, thereby vitiating the entire disciplinary proceeding and as s uch require interference under judicial review. 15. Mr. Goswami would contend that a conjoint reading of the order of dism issal from service by the disciplinary authority and affirmed by the appellate a uthority would disclose that the entire evidence of PWs including the written st atement along with the original medical reports have been lost sight of by the authority, whereas undisputed facts would go to show that the petitioner was suf fering from various ailments and had applied for medical leave for 28 days which has been brought on record and thus the order of dismissal from service on the alleged charges is not sustainable in the eye of law and the punishment imposed is disproportionate to the gravity of the charges which require interference un der writ jurisdiction. In support of his submission, learned counsel for the petitioner has pla 16. ced reliance on the following decisions: (a) (b) (c) (2008) 1 GLR 58 (Razwaur Ahmed Choudhury -vs- State of Assam & Others) (2003) 1 GLR 544 (Rakesh Kumar Gaur -vs- Union of India & Others) (1998) 2 GLT 315 (Elangbamnimai Singh -vs- State of Manipur & Others) 17. Refuting the arguments advanced by Mr. Goswami, learned counsel appearin g for the petitioner, Mr. RK Bora, learned Govt. Advocate would contend that the petitioner is a member of disciplined force and the charges brought against him are serious in nature. The Enquiry Officer has asked him to cross-examine the witnesses as well as to produce the witness, if any, to which the petitioner de clined, meaning thereby that he had admitted the charges of not receiving the C ommand Certificate on 08.02.2006, though received the same on 14.02.2006 but di d not join in the new place of posting on transfer and on 28.02.2006, he had app lied for medical leave without explaining the cause of delay till 28.02.2006 whi ch has been taken note of by the disciplinary authority as well as the appellate authority after duly considering the report of the enquiry officer. Learned St ate counsel has further submitted that in a disciplinary matter the power of jud icial review is not directed against the decision but is confined to decision m aking process which do not require interference in the facts and circumstances o f the instant case. In support of his contention the following decision has been referred: - 18. (2009) 15 SCC 620 (Chairman -cum- Managing Director, Coal India Ltd. and Another -vs- Mukul Kumar Choudhury and Others). 19. Considered the rival submissions of the parties. Perused the relevant re cords placed before this Court by the learned State counsel along with the plead ings of the parties as well as the decisions referred to by the parties. Admitte dly on 08.01.2006, the petitioner being brought by A.S.I. was examined by a doc tor of Dergaon S.H.G., who found the petitioner under influence of liquor and a ccordingly submitted his report and the petitioner was kept in the police custod y for the night. On 09.01.2006, he was awarded 14 days Quarter Guard with 2 hour s PD per day whereof he had executed 5 (five) days P.D. and the remaining P.D. w as exempted for his illness as per recommendation of Medical Officer, as would r eveal from the deposition of PW 4 BHM Khagen Ch. Roy which amply demonstrates th at the petitioner was suffering from illness. Moreover the list of documents sub mitted along with the written statement of defence would disclose that the Medic al Officer of 11th A.P. Bn. has issued prescriptions on 12.01.2006 and 10.02.200 6 indicating his ailments and subsequently he was referred to Jorhat Civil Hospi tal on 23.02.2006 for treatment. But he was admitted at Sanjeevani Hospital on 2 3.02.2006 and discharged from the hospital on 25.02.2006. The doctor advised him to take rest for 4 (four) weeks. In the meantime, he had applied for medical le ave for 28 days on 28.02;.2006 which has been admitted by PW 2 Inspector Dimb eswar Bhuyan and PW 3 Hav/Clerk Atul Pator and the factum of illness supported b y medical prescriptions has not been considered by the enquiry officer and the disciplinary authority while holding that the charges have been proved. 20. Relating to charge No. 1, the disciplinary authority awarded 14 days Qua rter Guard with P.D. for 2 hours per day which, however, was exempted after comp letion of 5 days Quarter Guard on the advice of the Medical Officer for his illn ess which would show that the petitioner was already punished for the incident o ccurred on 08.01.2006 and therefore he cannot be punished twice for the same ca use of action and as such the charge No. 1 fails. 21. The written statement of defence filed by the petitioner along with medi cal prescriptions including the reply to 2nd Show Cause Notice would reveal that the petitioner belongs to lower strata of society and he is not aware of th e procedure of disciplinary proceeding including the rules/regulations etc. but neither the disciplinary authority nor the enquiry officer had informed him o f his right to take assistance of his fellow colleagues during the proceeding. L earned State counsel has also failed to show from the record that the petitioner /delinquent official was in fact informed about taking legal assistance from his colleague to defend his case, which thus caused prejudice in defending the case which would be evident from the report of the enquiry officer and the order of dismissal from service, because the defence set out in the pleadings has not b een referred either in the report of the enquiry officer or in the order of dis missal, meaning thereby there is lack of affording the reasonable opportunity in defending the case of the petitioner affecting the decision making process. Rule 66(VI) of Assam Police Manual, Part III mandates as follows;- 22. (cid:28)Rule 66 (VI). In the case of an appeal against an order imposing any penalty sp ecified in rule II, the appellate authority shall consider- (a) whether the facts on which the order was based have been established; (b) whether the facts established afford sufficient ground for taking action; an d (c) whether the penalty is excessive, adequate or inadequate; and after such con sideration shall pass order as if thinks proper. (cid:29) The order passed on 28.08.2007 by the appellate authority lacks its own reasons because the word ’consider’ implies due application of mind. There is no indication that the grounds urged in the appeal has been considered by the appe llate authority and whether such non-consideration has resulted in failure of ju stice when the entire pleaded facts established in the written statement is that due to various ailments and deteriorating health condition, the petitioner coul d not move to his new place of posting as directed by the authority. But the que stion of ailments have not been gone into by the authorities causing serious pre judice in arriving at the conclusion that the charges have been proved beyond r easonable doubt. Thus the court deems it fit to interfere with the decisions of the disciplinary authority as well as the appellate authority passed vide their order dated 05.12.2006 and 28.08.2007 respectively. The decisions cited by the p arties have not been dealt with herein because they deal with the issue of dispr oportionate penalty but in the case in hand the entire disciplinary proceeding h as been interfered with, thereby making them redundant. In the result, the writ petition is allowed. The impugned order under Me 23. mo No. BN-II/R/06/16,747-55 dated 05.12.2006 passed by the Commandant 11th Assam Police Battalion, Dergaon dismissing the petitioner from service and the order under memo No. DTAP/C/Appeal/2007/347 dated 28.08.2007 passed by the appellate a uthority (Deputy Inspector General of Police (TAP/EB), Assam) upholding the said order dated 05.12.2006 are hereby set aside and quashed directing the official respondents to reinstate the petitioner in service forthwith. However, the petit ioner shall not be entitled to any back wages, but shall be entitled to other se rvice benefits under law. Needless to say, it will be open for the disciplinary authority to initiate de novo proceeding if deemed appropriate. The parties are left to bear their own costs.