High Court · 2012

Heard Mr. A. Choudhury, learned counsel for the petitioner as we ll as Mr. N. Upadhya, learned State counsel. The petitioner is aggrieved by order dated 18.01.2003 (Annexure-4) by wh 2. ich he has been removed from service pursuant to a departmental proceeding. The appeal preferred by the petitioner against the said order of removal has also be en dismissed by Annexure-6 order dated 05.11.2003. Thereafter the petitioner fil ed the instant writ petition.

3. Mr. Choudhury, learned counsel for the petitioner submits that since the petitioner was absent from duty due to unavoidable circumstances (illness), the disciplinary authority ought to have considered the case leniently. He submits that the penalty imposed is grossly disproportionate to the gravity of the offen ce committed by the petitioner. countering the said argument, Mr. Upadhya, lear ned State counsel submits that the petitioner being a member of disciplined forc e, ought not have acted in such a manner of remaining absent from duty on numbe r of occasions. He submits that even after issuance of charge sheet, the petit ioner remained unauthorisedly absent for a period of one year which will go to s how that the petitioner was not at all interested in the job. The petitioner was appointed in Assam Police as Constable. He was so app 4. ointed in the year 1986. As stated by the petitioner himself, he fell ill in Oct ober, 1993 and thereafter he was referred to GMC&H, Guwahati for better treatmen t. He was allowed to remain in sick list in the police reserve, Kokrajhar and th ereafter on 20.12.1993 he was admitted to GMC & H in Psychiatry Department for h is illness termed as (cid:28)Nervous Disorder (cid:29). He was discharged from hospital on 18. 01.1994

5. After making the aforesaid statement in paragraph-3 in the writ petition and without stating anything as to whether the petitioner had resumed his duty or not, he has stated in paragraph-4 that in the month of October, 1995 he again fell ill and the departmental doctor referred him to GMC & H for better treatme nt. According to the petitioner, his treatment continued upto 10.11.1995. It is the case of the petitioner that on being declared medically fit, he was waiting to resume duty. On 20.02.1996, the doctor allowed him to attend duty, but in utt er surprise he was placed under suspension and charge sheets dated 12.02.1996 an d 16.02.1996 were served on him.

6. According to the petitioner, he submitted written statement of defence a nd thereafter an enquiry was conducted. The enquiry officer held the petitioner guilty of unauthorised absence from duty as was levelled against him. The charge sheet that was issued to the petitioner, although not enclosed to the writ pet ition, but the charge could be gathered from the enquiry report itself and the same is reproduced below: (cid:28)On 19.10.1995 you were reported sick and under gone medical treatment at R.N.B. Civil Hospital Kokrajhar, referred you to GMCH for better treatment on 29.10.19 95. Accordingly you were allowed to attend GMCH vide D.O. No. 6070 dated 10.11.1 995. But you did not obtain any command certificate to move for GMCH, Guwahati. Till date you have neither intimated your present where about, nor you have inti mated any progress of your illness, you have not communicated anything till date with this H.Q. for regularised of the sick period. Your act is seems your wilfu l unauthorised absence from Police Reserve. (cid:29)

7. In due course the enquiry was conducted in respect of the aforementioned charge and the enquiry officer held the petitioner guilty of the charge with th e following finding: (cid:28)Finding:- During my enquiry, I have gone through the all records available with D/P file and also proceeded for taking necessary evidence of the witnesses as p er list of the p.ws (1) SI (UB) Subash Ch. Nath R.O. kjr police Reserve, Now R.I . 7th A.P.B.N. (2) ABSI Urendra Rajgongshi, police Reserve (3) Hav. Joytish Barm an (4) BAC/637 Sukumar Koch, Police Reserve. I have also recorded the statement of the delinquent ABC/ 593 Zakir Hussain sepa rately observing all formalities. The evidence so recorded in minutely observed from the evidence given and recorded of the p.wq. and also minutely observed ser vice record and relevant documents which were attached with D/P file. It is foun d that the charged of gross misconduct and dereliction of duty levelled against the ABC/593 Zakir Hussain is established in prima face manner, because the delin quent was allowed to attend G.M.C. Hospital for better treatment as referred by RNB Civil Hospital as vide D.O. No. 6070 dtd 10-11-95, but neither the delinquen t obtain any command certificate from concerned officer nor intimate any progres s of his to his competent authority till recovered from ill. Secondly the delinq uent allowed to G.M.C. Hospital vide D.O. No. 6070 dtd 10-11-95 and same day the delinquent admitted at G.M.C. Hospital as indoor patient and he submitted disch arged certificate which are attached with D/P file SL page No. from 9 to 12 page and it has been seen that the delinquent admitted on 10-11-95 and discharge 12- 12-95 at out patient department and prescribed three (3) Nos of Medicines. On 29-2-96 the delinquent collected the medical fitness certificate from registe r of psychiatry, Guwahati medical college Hospital, Guwahati, so the document c learly indicated that the delinquent had been geeting sufficient time to intimat e his progress of illness to competent authority because he had admitted at G.M. C. Hospital on same day of D.O. No.6070 dtd. 1011‘-95. The delinquent was disch arge on 12-12-95 and checked up 17-2-96 within this period the delinquent was no t available at medical college as per discharged and checked up slip. So above d ocumentary evidence he had got enough time to intimate to competent authority ab out his progress of ill. It is clearly indicated the delinquent intentionally wa s not intimate accordingly. Thirdly, the service record to the delinquent is also minutely observed and it h as been notice that the ;delinquent is habitually unauthorise absence constable, so all total 9 (nine ) Nos of increment were stopped and several LWP were award ed for the same. Recently granted 135 days LWP vide D.C.No 1747 dtd26-4-2001. o f course he nos avail 540 days mental special leave w.e.f. 6-9-97 to 28-2-99 vid e D.O. No. 1531 dtd. 8-4-99. Under the circumstances, stated above I submit my finding without considering m y favour the charge of a gross misconduct and dereliction of duty levelled again st ABC/ 593 Zakir Hussain is proved beyond all reasonable doubts. (cid:29)

8. Accepting the enquiry report, the disciplinary authority passed the impu gned order dated 18.01.2003 imposing the penalty of removal from service. While imposing the said penalty the disciplinary authority recorded the finding that t he petitioner was absent from duty without any intimation and/or prior approval of the competent authority. The disciplinary authority also considered the fact that the petitioner remained untraced w.e.f. 20.02.2002 till the date of passing the impugned order.

9. Being aggrieved by the said order of removal from service, the petitione r preferred an appeal urging that the absence from duty was not intentional and that he had to remain away because of his illness. As regards the period of abse nce for one year from 2002-2003, the petitioner took the same stand of being ill .

10. The appellate authority considering all the aspects of the matter passed the Annexure-6 order dated 05.11.2003 upholding the order of removal from servi ce.

11. Mr. Choudhury, learned counsel for the petitioner submits that at the ti me of passing the impugned order of removal on 28.01.2003, the disciplinary auth ority could not have taken into account the period of absence of the petitioner w.e.f. 20.02.2002 till the date of passing the order inasmuch as there was no c harge levelled against the petitioner in respect of the said period. In the case of Rajasthan Tourism Development Corporation Ltd. and anr. v 12. s. Jai Raj Singh Chauhan reported in (2011) 13 SCC 541, under similar circumstan ces the Apex Court while upholding the order of penalty held that while consider ing the misconduct and absence from duty/unauthorised absence, the disciplinary authority is entitled to take subsequent misconduct of further wilful absence af ter issuance of charge sheet for first period of absence. Dealing with the scop e of judicial review in respect of penalty or punishment imposed by the discipli nary authority, the Apex Court observed that as in the said case, unauthorised a bsence from duty for 66 days may also entail dismissal from service. Interferin g with substitution of the penalty of dismissal from service with that of stoppa ge of two increments, the Apex Court held that the learned Single Judge as well as the Division Bench of the High Court was wrong in substituting the punishment .

13. As has been held by the Division Bench of this Court in Union of India vs. Mithilesh Singh reported in 2000 (3) GLT 62 and affirmed by the Apex Court in Mithiles Singh Vs. Union of India reported in (2003) 3 SCC 309, unauthorised absence from duty by a member of disciplined force may entail penalty of removal from service.

14. It will be appropriate to mention here that the service record of the pe titioner as disclosed in the enquiry proceeding bears clear testimony to the fac t that the petitioner while in service was in the habit of remaining absent from duty on various occasions. As many as on 19 occasions the petitioner remained a bsent from duty unauthorisedly for which he was reprimanded and the period of a bsence was regularised with leave without pay. He was also imposed with the pena lty of stoppage of increments for unauthorised absence. If such was the conduct of the petitioner, no fault can be attributed to the disciplinary authority in imposing the penalty of removal from service. Such incorrigible Police Constable cannot be retained in service.

15. ion and accordingly it is dismissed. For all the aforesaid reasons, I do not find any merit in the writ petit