High Court
Case Details
WP(C) 5593/2009 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) In this writ petition, petitioner seeks quashing of order dated 06-11-2009 passed by the Commandant, 12th Assam Police Battalion, Jamugurihat in the district of Sonitpur discharging the petitioner from service with immediate effect. Further prayer made is for a direction to the respondents for his reins tatement in service. 2. Case of the petitioner is that he was appointed as Armed Branch Constable on probation in the 12th Assam Police Battalion, Jamugurihat w.e.f. 07 -05-2008 vide the appointment letter dated 05-05-2008 issued by the Commandant o f the said Battalion. Such appointment was made subject to successful completion of basic training. 3. While the petitioner was undergoing basic training, a show-cause notice dated 28-08-2009 was issued to him by the Commandant of the Battalion ac ting as the disciplinary authority. In the said show-cause notice, DP (Disciplin ary Proceeding) No.20/2009 was mentioned, perhaps to indicate that the said show -cause notice was in relation to the above disciplinary proceeding. Petitioner w as asked to show-cause under Section 65 of the Assam Police Act, 2007 read with Rule 66 of the Assam Police Manual Part-III and Article 311 of the Constitution of India and Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964. T he allegation against the petitioner was that on 15-08-2009 at about 3:20pm, he remained absent from the Battalion Head-Quarters unauthorizedly and entered int o the house of Havildar Surendra Nath Borah with bad intention and showing indis ciplined conduct at public place after consuming liquor. He was accordingly char ged with indiscipline and gross misconduct. 4. According to the petitioner, he had submitted his written statem ent immediately after receipt of show-cause notice. While denying the allegation made against him, petitioner sought forgiveness and leniency for any act which might have been construed by the authority as an act of negligence or indiscipli ne. Thereafter, the Commandant passed the impugned order dated 06-11 5. -2009 discharging the petitioner from service. The said order was passed after c onsidering the findings and relevant papers of D.P. No.20/2009. Reference was ma de to an earlier D.P. No.06/2009 whereafter he was allowed to continue in servic e taking a lenient view. It was further observed that petitioner’s conduct will adversely affect the other recruits. 6. g the reliefs as indicated above. Aggrieved, petitioner has filed the present writ petition seekin 7. Contention of the petitioner is that he was not afforded reasona ble opportunity to participate in D.P. No.20/2009. No information was furnished to him as to which documents would be exhibited in the enquiry or who would be t he witnesses to depose. Petitioner was not afforded any opportunity to cross-exa mine any of the witnesses in the enquiry. Petitioner was also not furnished with a copy of the enquiry report. Impugned order was passed after taking into accou nt the findings of earlier D.P. No.06/2009 which was not a part of the charge. I mpugned order in tainted with stigma and, therefore, petitioner should have been provided reasonable and adequate opportunity before his discharge, which is not a termination simplicitor but a punitive one. Respondent No.4 has filed affidavit. It is stated that petitione 8. r’s appointment was subject to successful completion of basic training. Petition er was undergoing basic training of the 95th batch but he did not complete the b asic training. Petitioner was discharged from training by the Commandant, 11th A ssam Police Battalion, Dergaon. However, his case was sympathically considered a nd he was sent to undergo basic training again. It is stated that while the peti tioner was undergoing basic training in 12th Assam Police Battalion, he left the barrack without taking permission from the competent authority and went to the house of Havildar Surendra Nath Borah on 15-08-2009 where some indecent incident was reported. The incident was reported to the Battalion Head-Quarter over tele phone by some members of the public. Thereafter, petitioner was brought to the B attalion Head-Quarter. Petitioner was medically examined and as per medical repo rt, he was found to be under the influence of liquor. It is further stated that petitioner’s reply to the show-cause notice was received on 06-09-2009. Discipli nary authority appointed Enquiry Officer and thereafter enquiry was conducted ob serving necessary procedure. In the enquiry conducted, petitioner was present d uring examination of the witnesses. Finally, impugned order dated 06-11-2009 was passed after taking into account the findings of the Enquiry Officer.
Legal Reasoning
In his reply affidavit, petitioner has denied any bad intention 9. on his part in visiting the residence of Havildar Surendra Nath Borah. He has al so questioned the veracity of the medical report as he was not given any opportu nity to verify the same. It is contended that no enquiry as is understood in law was held. Petitioner has reiterated that he was not given adequate and reasonab le opportunity in the enquiry. Further contention is that no Presenting Officer was appointed in the enquiry. No copy of the enquiry report was furnished to the petitioner. Therefore, the order of discharge is in violation of the principles of natural justice. 10. . Handique, learned Government Advocate, Assam. Heard Mr. N. Borah, learned Counsel for the petitioner and Mr. J 11. Mr. Borah submits that the impugned discharge is not a terminati on simplicitor but a punitive one carrying stigma. No Presenting Officer was app ointed to present the case of the disciplinary authority in the enquiry. In the enquiry conducted, no procedural safeguards were provided to the petitioner. Eve n copy of enquiry report was not furnished to the petitioner. In view thereof, s ince the disciplinary proceeding was conducted in violation of the principles of natural justice and established procedure, the same is required to be quashed a nd a direction may be issued to the respondents to reinstate the petitioner in s ervice. 12. Submissions made by learned Counsel for the petitioner has been opposed by the learned State Counsel, who submits that petitioner was on probati on and his appointment was subject to successful completion of the basic trainin g. Being a probationer, petitioner cannot claim that he can be discharged during his probation period only after holding a regular disciplinary proceeding. Peti tioner’s conduct, which is highly reprehensible, has disentitled him to continue in a disciplined force. He, therefore, seeks dismissal of the writ petition. 13. Submissions made have been considered. Also perused the record. 14. It is not in dispute that petitioner was on probation when he wa s discharged from service by the impugned order. Confirmation of service or cont inuance in service of a probationer would depend on successful completion of the probation period, which in the present case is the basic training. A probatione r cannot claim as a matter of right that he is entitled to procedural safeguards including holding of departmental proceeding before issuing an order of dischar ge. Exception to the above general rule would be in a case where misconduct is a lleged or where there is stigma. While contours of misconduct are well demarcate d, what constitutes stigma or what is stigmatic would depend upon the facts and circumstances of each case. But if the discharge order is stigmatic, the probati oner would be entitled to notice and hearing before such discharge. 15. eady reference, the same is quoted hereunder:- (cid:28)OFFICE OF THE COMMANDANT, 12TH ASSAM POLICE BATTALION JAMUGURIHAT :::: SONITPUR Having said so, the impugned order may now be looked into. For r
Decision
ORDER Seen the findings and relevant papers after D.P. (No.20/09) (hereinafter called D.P.) against R/C 463 Hemanta Hazarika (hereinafter called delinquent). The delinquent is a recruit constable. As per service condition, it is purely te mporary and subject satisfactory completion of Basic training. He was discharged from training by the Commandant, 11th APBn, Dergaon Vide Memo No.Bn.11/R/2009/9 08-18 dtd.20-01-2009, and sent back him to this unit, D.P. No.6/09 was take agai nst him. He was allowed to continue taking a lenient view. But it appears that his such conduct will adversely affect on the other recruits . Hence considering all facts and circumstances, I, the Commandant, 12th APBn do h ereby pass the following orders- (1) R/C 460 Hemanta Hazarika is discharged from the service with immediate effec t (i.e. 05-11-2009) (2) Order copy be served on the delinquent. (3) D.P. is disposed of. Commandant, 12th Assam Police Battalion Jamugurihat, Sonitpur. Memo No. Bn 12/R/DP/10028-39 dtd.06-11-2009 (cid:29). 16. A perusal of the aforesaid order would show that a disciplinary proceeding was conducted against the petitioner. The findings and relevant paper s of the disciplinary proceeding were considered by the disciplinary authority w hereafter he took the view that petitioner’s conduct will adversely affect the o ther recruits. He, therefore, discharged the petitioner from service. Since the disciplinary authority decided to initiate disciplinar 17. y proceeding against the petitioner, the same was required to be held in accorda nce with law. Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 l ays down the procedure for imposing penalties. It provides that at the time of d elivering the charges, the disciplinary authority should invariably furnish to t he Government servant a list of documents and witnesses by which each article of charge is proposed to be sustained. The disciplinary authority is also required to nominate a person to present the case in support of the charges before the E nquiry Officer. At the conclusion of the enquiry, the Enquiry Officer is require d to prepare report of the enquiry, recording his findings on each of the charge s together with the reasons. The disciplinary authority shall consider the recor d of the enquiry and record his findings on each charge. Similar procedure is la id down in Rule 66 of the Assam Police Manual Part-III. 18. It is also settled law that before the disciplinary authority ta kes a decision on the basis of the report of enquiry, a copy of the same is requ ired to be furnished to the delinquent Government servant and his response to th e report should be considered. 19. It is evident from the record that no list of documents or list of witnesses were furnished to the petitioner. No Presenting Officer was appoint ed to present the case of the disciplinary authority in the enquiry. The doctor who gave the medical report which opined that petitioner had consumed liquor was not summoned to give evidence in the enquiry. Enquiry report was not furnished to the petitioner. But based on the enquiry report, the disciplinary authority o bserved that petitioner’s conduct will adversely affect the other recruits and, therefore, the petitioner was discharged from service. On the face of it, the pr ocedure followed while passing the impugned order is not in accordance with law and is also in clear violation of the principles of natural justice. The dischar ge order is clearly stigmatic and is not a termination simplicitor. It is not th e case of the disciplinary authority or the appointing authority that the perfor mance of the petitioner was assessed and on such assessment, his performance was found to be unsatisfactory and, therefore, he was discharged. 20. Having decided to hold an enquiry and infact, the same having be en held, it was incumbent on the part of the Enquiry Officer as well as the disc iplinary authority to have followed the prescribed procedure. The same having no t been done, impugned discharge order cannot be sustained. 21. Accordingly, impugned order dated 06-11-2009 is set aside and qu ashed. Petitioner shall be reinstated in service as a probationer and his servic e will be subject to successful completion of the basic training. Having regard to the facts and circumstances of the case, no order for payment of back wages i s called for. 22. h steps the authority may consider in accordance with law, if so advised. Reinstatement of the petitioner will be without prejudice to suc 23. Registry to send back the record.