Gauhati High Court
Kishore Bhuyan vs State Of Assam & Ors on 7 August, 2014
Author: T. Vaiphei
Bench: T. Vaiphei
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND
ARUNACHAL PRADESH)
WP (C) NO. 3512 of 2011
Sri Kishore Bhuyan,
Son of Late Maheswar Bhuyan,
Resident of Sarthebari,
P.O. Sarthebari,
Dist. Barpeta, Assam.
...... Petitioner.
-Versus-
1.The State of Assam
Represented by the Secretary to the
Govt. of Assam, Agriculture Department,
Dispur, Guwahati-6.
2.The Assam State Agriculture Marketing
Board, represented by its Chairman,
Ramakrishna Mission Road,
Ulubari, Guwahat- 781007.
3.The Chairman, Assam State Agricultural
Marketing Board, Ramakrishna Mission
Road, Ulubari, Guwahati-781007.
4.The Chief Executive Officer,
Assam State Agricultural Marketing
Board, Ramkrishna Mission Road,
Ulubari, Guwahati-781007.
... Respondents.
PRESENT HON'BLE MR. JUSTICE T. VAIPHEI WP( C) No .3512 of 2011 Page 1 of 7 Advocates for the petitioner : Mr. N. Dutta, Mr. I. Choudhury, Mr. B. Bhuyan, Mr. B. Talukdar, Mr. M. Das.
Mr. P. Mahanta Advocates for the respondents: Md. Noormahammad, G.A Mr.A. Bhattacharjee Mr. K. Bhattacharjee, SC; A.S.A.M.B. Date of hearing : 07.08.2014 Date of Judgment : 07-08-2014 JUDGEMENT AND ORDER ( ORAL) Having heard Mr. I. Choudhury, learned counsel for the petitioner, Md. Noormohammad, learned Government Advocate appearing for the respondent No.1 and Mr. K. Bhattacharyya, learned counsel appearing for the respondents No. 2,3 and 4, I am of the view that this is a fit case for invoking the provision of FR 18 by the respondent Board.
2. The factual matrix of the case are that the petitioner was appointed as Assistant Marketing Inspector in the year 2000 and joined the service on 17.4.2000 at Baharihat Market Committee. On 16.5.2002, he was transferred from Boharihat Regulated Market Committee to Tinsukia District Regulated Market Committee, which he joined on 28.5.2002. The Secretary, Tinsukia District Regulated Market Committee, Tinsukia issued the order of posting for the petitioner at Chapakhowa Market Centre and directed him to survey the works and enlist the growers of WP( C) No .3512 of 2011 Page 2 of 7 ginger, which he did. According to him, while he was discharging such duties, he developed Neuropsychiatry disorder and had to undergo medical treatment from the month of October, 2002 and as a result thereof, he was not able to attend his office since October, 2002. Due to the nature of his illness, he was also not in a position to communicate with the respondent authorities concerning his illness and about his absence from duty. When he could not explain his absence due to his mental illness, a show-cause notice bearing dated 29.9.2004 was issued upon him for unauthorised absence since June, 2002 and for collecting market cess on banana and for leaving the Head Quarter without any leave/intimation and at the sametime keeping official important documents like 'K' Form Book No. 7032 and 'M' Form Book in his custody. According to him, he was not even aware of show cause notice nor was he capable of understanding such notice even if he had actually received it in those days. Ultimately, by the order dated 24.5.2007, his service was terminated by the respondent No.4 without giving him reasonable opportunity of hearing. This is how the petitioner filed this writ petition for appropriate relief.
3. The contention of the learned counsel for the petitioner is that the petitioner was prevented by compelling circumstances from attending his duty and, as such, he could not be accused of wilful absence or negligence of devotion to duty. In order to demonstrate that the petitioner was suffering from mental illness till 20.7.2010, he draws my WP( C) No .3512 of 2011 Page 3 of 7 attention to the certificate issued by Mr. Ajit Goswami, M.D., Neuro Psychiatrist, which stated that the petitioner had been under his treatment from October, 2002 onwards and that he was now ready to resume his duty. Under the circumstances, argues the learned counsel, the petitioner could not have been removed from service without following the procedure laid down by FR 18, and the impugned order is, therefore, not sustainable in law.
4. The learned counsel appearing for the respondent Board, however, refutes the contention of the learned counsel for the petitioner and submits that if the petitioner was actually suffering from mental illness and was incapable of communicating his illness with the respondent Board, his family member could have approached the respondent Board and sought for leave of absence on his behalf on medical ground. The learned counsel argues that as the petitioner had been absent from duty for eight years without leave, he is undoubtedly guilty of wilful absence from duty and the impugned order was rightly passed by the respondent No.4, for which the interference of this Court is not called for.
5. In my opinion, no person in his right mind would feign mental illness unless he really suffers from such illness, after all, making such false claim can have grave implication for his future and is also most likely to cast stigma on his children thereby making them pariah in the society for having a mentally sick father. It is another matter WP( C) No .3512 of 2011 Page 4 of 7 that he may have been forced to disclose his mental illness in the interest of his service career. In any case, on the facts and in the circumstances of the case, the respondent Board should have proceeded against the petitioner under FR 18 to determine as to whether he was really mentally sick as claimed by him or not or whether his absence from duty can be treated as wilful absence from duty or not and should not have terminated the service of the petitioner without first undertaking such exercise. FR 18 is in the following terms:
"F.R. 18. Unless the Governor, in view of the special circumstances of the case, shall, unless otherwise determine, after five years' continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave, a Government servant shall be removed from service after following the procedure laid down in the Assam Service (Discipline and Appeal) rules, 1964."
4. Under FR 18, a guideline has been fairly laid down for the authority for taking action when a government servant is continuously absent from duty whether with or without leave. In the case of Harendra Nath Bhattacharjee -Vs- State of Assam and Others, reported in 1995 (III) GLT 228, it has been held that removal has to be done only after following the procedure laid down in the Assam Services (Discipline and Appeal) Rules, 1964 and also after following the provisions of Article 311 of the Constitution of India. In WP( C) No .3512 of 2011 Page 5 of 7 the instant case, such procedure has not apparently been followed while issuing the termination order of the petitioner.
5. The law is well settled that if the absence from duty is due to compelling circumstances such as illness or where it is not possible to report to perform duty, such absence cannot be held to be wilful.─ See Chennai Metropolitan Water Supply and Sewerage Board and Others -Vs- T.T. Muralibabu, (2014) 4 SCC 108. This aspect shall have to be considered by the respondent authorities while proceeding under FR 18. In my opinion, the respondent authorities have not properly applied their mind to the facts of the case and the law applicable herein. This amounts to improper exercise of jurisdiction by the respondents in issuing impugned termination order, which calls for the interference of this Court.
6. Resultantly, the writ petition is allowed. The impugned termination order dated 24.5.2007 is hereby quashed. The respondent authority is directed to proceed against the petitioner in accordance with the provision of FR 18 and take a fresh decision against him after completion of the departmental enquiry within a period of six months from the date of receipt of this order. The question as to whether the petitioner should be reinstated to his post pending departmental enquiry is, however, left to the discretion of the authority.
WP( C) No .3512 of 2011 Page 6 of 7
7. With the aforesaid directions the writ petition stands disposed of.
JUDGE Upadhaya WP( C) No .3512 of 2011 Page 7 of 7