High Court · 2012

Heard Mr. C. Baruah, learned counsel for the petitioner. Also heard Mr. R.K. Bor a, learned State Counsel. By means of this writ petition, the petitioner has put to challenge the Annexure-5 & 6 orders dated 13.11.2009 and 19.12.2009. While b y the first order, he has been dismissed from service pursuant to departmental p roceeding, by the second order, his appeal has been dismissed by the appellate a uthority. The charge against the petitioner was as follows :-

2. (cid:28)You are required to show cause U/S 65 of the Assam Police Act/2007 read with ru le 66 of APM Part-III and article 311 of the Constitution of India as to why any of the Penalties Prescribed thee in should not be inflicted on you on the follo wing charges based on the statement of allegation attached herewith. That while on 22.05.2009 you were attached with platoon No. 3 posted at Newchunt hia BOP. You were deputed to report at this unit Hospital with proper command ce rtificate for your treatment. After your recovery from illness on 22.06.2009 you were directed to report back to your respective place of posting. But you neith er reported your joining at the place of your posting nor communicated any infor mation regarding your inability to resume duty and remained absent from duty w.e .f. 22.06.2009 PM to 02.08.2009 AM. Notice issued from this office against you t o resume duty but found no response from your end. You were heard in O,R, on 04. 08.2009 but you failed to give satisfactory answer. On scrutiny the service reco rd it is found that you are a habitual absentee. Your above act of unauthorised absence from duty w.e.f. 22.06.2009 P.M. to 02.08 .2009 A.M. by 40(forty) days without leave or permission from the competent auth ority amounts to gross indisciplined conduct and negligence of duty which render you unfit to continue in Police force. Hence you are charged accordingly. You should submit your written explanation in defence within 10(ten) days from t he date of receipt of this communication provided you do not intend to the inspe ct the documents which have relevance with the facts in issue. In case you inten d to inspect those documents you should write to the undersigned within 7(seven) days from the date of receipt of this communication and thereafter submit your explanation within 10(ten) days after completion of inspection. Your written statement stating whether you desire to be heard in person should b e submitted to the undersigned within the period mentioned above. In case you failed to submit your explanation within period mentioned above, the enquiry of the D/P will be held as Ex-parte. (cid:29) That it is a fact that while I was posted at Newchunthia BOP under Plato

3. In response to the aforesaid charge, the petitioner buy his written stat ement of defence dated 18.8.2009 virtually admitted the charge with the followin g statement. (cid:28)2) on No.3 of the 1st A.P. Battalion, I was deputed to report at the Army Hospital for my treatment and I partially recovered from my illness on 22.6.2009 and disc harged from the Army Hospital ; and though I was asked and directed to report ba ck at my new assignment, I could not do so as I was not completely recovered fro m illness of Kidney which requires sufficient long treatment for its recovery. S o, I had to continue my treatment at the Nazira (cid:28)Karmashree Hiteswar Saikia (cid:29) Gov ernment Sub-Divisional Hospital as an out-door patient for a pretty long period and as such I could not apply to my superior authority for formally obtaining pe rmission from the authority. (3) That remaining absence from my duties for more than one month from 22.6. 2009 upto 02.09.2009 was not at all intentional or with any motive or evil inten tion on my part but it was caused by the compulsion of grim situation as I was f eeling severe paid in my Kidney after my release from the Army Hospital ; so wit hout even coming to my paternal place at Mezenga at Titabor I had to take immedi ate and urgent treatement at the Nazira Hiteswar Saikia Govt. Hospital for a pro longed period and after recovery from my very painful ailment, I went to join my duties on 2.8.2009. So, everything was caused by the emergency of the situation . (cid:29) In due course, departmental enquiry was conducted and the Enquiry Office 4. r having held the charge to have been established, the Disciplinary authority di rected to issue second show cause notice as to why the penalty of dismissal shou ld not be imposed. In response to the second show cause notice, the petitioner w hile admitting the charge and his previous lapses, however, prayed for a lenient approach in the matter. Thereafter, the disciplinary authority by his impugned order dated 13.11.2009 dismissed the petitioner from service. Being aggrieved, the petitioner preferred an appeal which was also dismissed by the impugned Anne xure-6 order dated 19.12.2009. Hence, this writ petition.

5. Mr. C. Baruah, learned counsel for the petitioner submits that the petit ioner was not furnished with the enquiry report before imposing the penalty of d ismissal from service, on that score alone, the impugned orders are liable to be set aside. He further submits that considering the gravity of the charge, which is unauthorised absence from duty from 22.6.2009 to 02.08.2009, the penalty of dismissal from service is grossly disproportionate, requiring interference of th is Court. In this connection, he has placed reliance on the decision of the Apex Court reported in (1993) 4 SCC 727 (Managing Director, ECIL, Hyderabad Vs. B. K arunakar and others).

6. On the other hand, Mr. R.K. Bora, learned State Counsel submits that the petitioner being a member of the disciplined force, cannot be permitted to brin g indiscipline to the force. Referring to the charge of admission on the part of the petitioner, he submits that it is for the authority to decide as to what pu nishment would meet the ends of justice. He further submits that the past servic e records of the petitioner is also not encouraging.

7. I have considered the submissions made by the learned counsel for the pa rties and have also considered the materials on record. As to what is the charge against the petitioner has been noted above. The petitioner was to report for d uty after the stipulated period but he neither reported for duty nor made any co mmunication with the authority. This fact is admitted by the petitioner. However , his plea is that he was still suffering and had to undergo treatment elsewhere . While according to the petitioner, he was suffering from Kidney trouble but as recorded in the appellate order dated 19.12.2009, the medical certificate produ ced by him reflect otherwise and the same had shown the disease of PUS Bronchiti s. During his earlier service period, before dismissal from service also, he was found to be in the habit of remaining absent from duty unauthorisedly, for whic h he was imposed with punishment of LWP-25, pay-cut-3, punishment drill-8 and fa tigue duty-1. Once he was discharged from service in the year 2004. However, on reconsideration, he was again reinstated in service. All the corrective measures failed to yield any concrete result and the petitioner remained incorrigible.

8. As recorded in the impugned order of dismissal from service, his stay in a disciplined force would affect the morale and discipline of the force.

9. The appeal preferred by the petitioner was also gone into by the appella te authority taking note of the pointes urged by the petitioner. In the totality of the circumstances, the appellate authority was inclined to accept the punish ment awarded by the disciplinary authority.

10. As regards the plea of non-furnishing of the copy of the enquiry report, apart from the fact that on the issuance of the second show cause notice and th e response thereof shown by the petitioner, he had never asked for the same, no pre-judice has also been caused for non-furnishing of the copy of the enquiry re port.

11. The decision on which the learned counsel for the petitioner has placed reliance i.e. B. Karunakar (supra), the Apex Court while emphasizing the need fo r furnishing the enquiry report, also cautioned against mechanical approach of t he matter. As in the said case, in various subsequent decision of the Apex court , it has been held that mere non-furnishing of the copy of the enquiry report it self will not entail interference with the order of penalty unless prejudice is shown and pleaded. In the instant case, no pleading has been made in the writ pe tition as to the prejudice caused to the petitioner.

12. As has been held by the Apex Court in Channabasappa Basappa Hapali Vs. S tate of Mysore reported in AIR 1972 SC 32, admission of fact stated in the charg e sheet amounts to admission of guilt. Responding to the charge sheet, the petit ioner having admitted the charge levelled against him and also the penal measure s adopted against him, it was sufficient on the part of the disciplinary authori ty to take a decision on those charges. It is not for the writ Court to sit on a ppeal over the decision taken by the disciplinary authority to a particular pena lty. As regards the punishment being disproportionate, Mr. R.K. Bora, learned St ate Counsel has rightly emphasized the need for discipline in the disciplined fo rce, which the petitioner measurably failed to maintain. Above being the position, this Court exercising the power of judicial re 13. view under Article 226 of the Constitution of India, cannot interfere with the i mpugned orders by sitting on appeal over the sound discretion exercised by the d isciplinary authority and appellate authority. At this stage, Mr. C. Baruah, lea rned counsel for the petitioner submits that the petitioner having rendered abou t 19 years of service, the penalty of dismissal could disentitle him from any se rvice benefit and that considering the present plight of the petitioner, the res pondents may consider the substitution of the penalty of dismissal from service with that of compulsory retirement.

14. In view of my above findings, no such direction can be issued. However, it will always open for the respondents to consider that aspect of the matter, i f so advised and approach being made by the petitioner.

15. re shall be no order as to costs. Writ petition is dismissed with the above liberty to the petitioner. The