High Court
Case Details
WP(C) 4695/2012 BEFORE THE HONBLE JUSTICE MR. B.K.SHARMA Heard Mr. N.N. Karmaka, learned counsel for the petitioner, also heard Mr. M.Hal oi, learned counsel for the respondents.
Legal Reasoning
The petitioner is aggrieved by the Annexure -11 order dated 14.10.09 by 1. which he was dismissed from service pursuant to a Departmental Proceeding. By th e said order it has also been conveyed that the petitioner is not entitled to an y financial benefit from the date of his unauthorized absence from duty (17.06.0 205) 2. The petitioner while was serving as Habilder, was referred to Guwahati M edical College Hospital, for eye treatment vide Annexure -1 Command Certificate dated 17.06.0205. When the petitioner did not report back for duty for 8 months without any intimation to the authority, he was issued with the Annexure -3 noti ce dated 21.02.2006 directing him to rejoin the duty within three (3) days. It w as intimated that upon failure to do so, departmental action would be initiated against him. In the show cause notice, earlier three (3) W.T massages issued fro m Battalion Quarter asking him to resume duty within sever (7) days had also bee n referred to. Admittedly, the petitioner did not respond to the said notices da ted 21.05.2006 and also the earlier three (3) W.T massages. The petitioner was placed under suspension by order dated 01.05.2006 bec 3. ause of unauthorized absence from duty w,e.f. 17.06.2005. Thereafter the charge sheet was issued to him on 01.05.2006 under section 7 of the Police Act read wit h Rule 66 of the Assam Police Manual by Part (III) and Article 311 of the Consti tution of India. The charge levelled against him was as follows: CHARGES While you were posted to Hqr. Platoon of 5th A.P.BN, sontilla you were allowed t o attend Guwahati Medical College Hospital for treatment of eye on 17.06.2005 as referred by the M.O Unit Hospital, Sontilla, but without any intimation to this BN Hqr.or taking any further permission from the competent authority, you remai ned unauthorizedly absent from duty since after your departure to till date cons isting 349 days on the plea of treatment. Meanwhile as many as six (6) W.T. Massages was sent to you through the O/C, Gore swar P.S and I/C, G.M.C.H. O.P asking you to resume your duty immediately and to intimate about your status of treatment. But in spite of getting these messages you dared not to turn up at this BN. Hqr. nor sent leave petition for the purpo se of your prolong treatment or seeking permission to continue the treatment. So another notice was sent to you in your home address by registered post asking t o resume your duty but you did not respond to it also and remained willful unaut horized absence till date. The I/C, GMCH,O.P. has intimated this office by a W.T. message dated 30.03.2006 that you had not reported to any department of GMCH for your treatment on 17.06. 2005 which indicates your negligence of duty. Further your past service records also indicates that you remain unauthorizedly absent on 18th occasions for 541 days in between 1989 to 1999 and further these absence period was treated as L.W.P. which substantiate the above charges. You being a member of disciplined police force have violated the discipline and have shown scant Unit regard for higher authorities which render you unfit to be retained in this department. You are therefore charged with gross negligence of duty, misconduct and remissne ss. 4. Along with the charge sheet the list of witnesses and documents and also the statement of allegations had been enclosed. As will be evident from the l ist of documents, as many as eight (8) W.T. Massages had been issued to the peti tioner for resumption of duties, but the petitioner did not respond to any one o f them. 5. After issuances of the charge sheet, the Disciplinary Authority vide Annexure -7 communication dated 19.09.2008 directed the petitioner to appea r before the Enquiry Officer on 30.08.2009. Admittedly the petitioner did not ap pear before the Enquiry Officer. Eventually the Enquiry Proceeded exparte. After submission of the Enquiry Report by the Enquiry Officer holding the petitioner guilty of the charge leveled, the second show cause notice was issued asking him to make representation against the Enquiry Report. On that occasion also, the p etitioner did not respond. Thereafter he was again accorded another opportunity to respond to the second show cause notice by issuing another notice dated 25.06 .2005 (Annexure -9). The petitioner did not respond the same also, situated thus , the Disciplinary Authority had no other option than to pass the impugned order dated 14.10.2009 dismissing the petitioner from service with immediate effect a nd further providing that he will not be entitled to any financial benefits sinc e the date of unauthorized absence i.e. 17.06.2005.
Legal Reasoning
6. After long three (3) years of dismissal from service, the petitioner file d the writ petition on 26.09.2012 challenging the said order of dismissal. Mr. K armakar learned counsel for the petitioner, submits that since the petitioner wa s under command on the basis of which he had reported for treatment at G.M.C.H. till the cancellation of the said command he could not be dismissed from the se rvice. He further submits that since the petitioner was under treatment that asp ect of the matter ought to have been considered by the respondents while passing the order of dismissal from service preceded by initiation of Departmental Proc eeding. Referring to the stands urged in the writ petition (Para 20), he further submits that initiation of the proceeding under Section 7 of the Police Act, 18 61 is not sustainable in law. For a ready reference, the grounds urged in the wr it petition towards assailing the order of dismissal are reproduced below: (cid:28)20. pugned order of discharge dated 14.10.2009 (Annexure -14) by this writ petition on the following of law: That, the petitioner begs to state that he has challenged the im (a) Because the Command Certificate dated 17.06.2005 (Annexure -1) is a lawful order made by competent authority. The petitioner was allowed to undergo medical treatment by this lawful order and, thereby, no proc eeding u/s 7 of the Police Act against him for the reason that there is no remis s (i.e. careless of duty) or negligent in discharge of duty of the petitioner. The Commandant (Respondent No. 2), therefore, has acted without jurisdiction by dismissing the petitioner from his service by exercising his power under sectio n 7 of the Police Act, 1861. (b) Because, at best, the respondents could have revoked the Command Certifi cate dated 17.06.2005 (Annexure -1) and prosecuted the petitioner under Section 29 of the Police Act on the ground that he has willfully violated the order give n by the notice dated 21.02.2006 (Annexure -5) as he gave no response to the sai d notice. ( c) Because, save the fact stated in ground (b) above, no proceeding under S ection 7 or Section 29 of the Police Act lies against the petitioner until he is allowed to return to his duty after completion of his treatment. The petitioner was lawfully allowed to undergo medical treatment from 17.06.2005 by issuing a Command Certificate dated 17.06.2005 (Annexure -1) whereby he was directed to re turn to his duty after completion of his treatment and accordingly, he returned to his duty on 25.12.2011 with a medical certificate of fitness dated 23.12.201 1 (Annexure -10). The settled law, in the present case, is that the respondents, after allowing the petitioner’s return to duty as they bind themselves by the C ommand Certificate (Annexure -1), may discern between right and wrong of the pet itioner’s prolonged period of treatment shown by the petitioner in support of me dical certificates and if the medical certificates relating to treatment are fou nd not satisfactory, they may proceed against the petitioner under Section 7 of the Police Act. The respondents are estopped by the principle of estoppel from d isallowing the petitioner to return to his duty after completion of his treatmen t because he has been directed by the Command Certificate (Annexure -1) to do so . Such being the case, the impugned order of discharge dated 14.10.2009 (Annexur e -11) passed in the premature proceeding u/S 7. of the Police Act is illegal an d is liable to be set aside outright. (d) Because, beside illegality stated in ground ' above, there is an irregu larity that the Commandant ( Respondent No. 2), by order of discharge dated 14.1 0.2009, has declared that the petitioner is unauthorized absent from his duty fo r a period of 349 days from 17.06.2005 to 01.05.2006 whereas the period from 17. 06.2005 to 1.05.2006 comprises 319 days but does not comprose 349 days and where as the Command Certificate dated 17.06.2005 (Annexure -1) has not been revoked i n order to count the said period as unauthorized absent. The commission of such illegality and irregularity by the Commandant (Respondent No. 2) has vitiated th e impugned order of discharge dated 14.10.2009 (Annexure -11). (cid:29) 7. In the counter affidavit filed by the respondents it has been stated tha t the petitioner was referred to G.M.C.H for undergoing treatment and not at SHA NKARDEV NETHRALAYA Guwahati. According to the petitioner he had also undergone t reatment in the said hospital, although the fact of the matter is that he was re ferred to only G.M.C.H. 8. In Para -9 of the counter affidavit the respondent have referred to the W.T. massages which were issued to the petitioner directing him to rejoin duties . The respondents have also referred to the Disciplinary Proceeding that was ini tiated against the petitioner. As noted above, the petitioner did not respond to the said proceeding. As regards the allegation of none payment of admissible sa lary for the particular period, the same has been denied and has been stated tha t the payment of the amount was made to the petitioner. The petitioner has not c ontroverted the stand of the respondents in their counter affidavit by filing an y affidavit-In-reply. 9. Mr. Haloi learned State counsel, referring to the stand of the responden ts in the counter affidavit and also the own stand of the petitioner in the writ petition has submitted that the writ petition is misconceived and that the peti tioner is not entitled to any relief. 10. I have gone through the entire materials in reference submissions made b y the learned counsel for the parties. The facts speak for themselves. The writ petitioner himself has admitted that after reporting for treatment in the G.M.C. H on the basis of the Annexure -1 Commanding Certificate dated 17.06.2005, in sp ite of receipt of several notices from the authority, he did not rejoin duty. I t has also been admitted that although he had received the charge sheet but he d id not reply to the same, nor he had participated in the Enquiry Proceeding even the second show cause notice followed by a special show cause notice was also n ot respond to. Now by filing the instant writ petition the petitioner has assail ed the order on the above mentioned grounds. If we refer to the said grounds, what has been urged by the petitioner i 11. s that since the certificate of Command permitting him to undergo treatment at G .M.C.H was not recalled, he is still under the said Certificate of Command and c ould not have been dismissed. Such a plea is wholly misconceived and not sustain able in law. After issuance of the Command Certificate dated 17.06.2005 permitti ng the petitioner to undergo treatment at G.M.C.H, he was to report back to du ty, but the petitioner remained under unauthorized absence and did not respond t o the W.T. massages issued to him from time to time asking him to report back to duty. Thereafter also, he did not respond to the charge sheet and the Enquiry P roceeding and even the second show cause notice. 12. It has been held by the Apex Court in Channabasappa Basappa Happali vs. The State of Mysore, reported in Air 1972 Supreme Court 32, in a Departmental En quiry facts are required to be established providing opportunities. When the del inquent admits the relevant facts on which the decision could be taken against h im it would not be necessary for further. In such a case it cannot be said that the enquiry was in any breach of Principles of Natural Justice. In the instant c ase also as in the said case, the petitioner involved was a police officer who r emained absent without leave. Having regard to the facts admitted by the petitio ner involved therein, the Apex Court observed that there is no distinction betwe en admission of facts and admission of guilt. In the instant case the petitioner as well as the learned counsel representing him has fairly admitted the fact of unauthorized absence and also the fact of not responding to W.T. massages and t he Departmental Proceeding. As has been held by the Apex Court in Mithilesh Sing h vs. Union of India reported in (2003) 3SCC,309, unauthorized absence by a memb er of the Disciplined Force may attract the penalty of removal from service. By the aforesaid decision, the Apex Court affirmed the judgment of Divis 13. ion Bench in Union of India vs. Mithilesh Singh, reported in 2000 (3) GLT, 62. A s in the said case, in the instant case also, the petitioner being a member of t he Assam Police was also a member of the Disciplined Force. Admittedly, he remai ned absent from duty without any authorization from 2006 to 2012. Inspite of rec eipt of notice asking him to rejoin duties, he did not respond to the same. The plea that the Command Certificate was not recalled is not sustainable inasmuch a s the moment he was directed to resume duty by W.T. Massages, the Command Certif icate stood recalled. 14. ccordingly, it is dismissed. There shall be no order as to costs.
Decision
In view of the above, I do not find any merit in the writ petition and a