Gauhati High Court
Joydeep Kumar Singha vs The State Of Assam And 3 Ors on 13 December, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/13
GAHC010183962020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5528/2020
JOYDEEP KUMAR SINGHA
S/O SRI PRODIP KUMAR SINGHA,
VILLAGE TARAPUR MONIPURI BASTI PART 7, PO TARAPUR, PS SILCHAR,
DIST CACHAR, ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM (DEPARTMENT OF HOME).DISPUR, GUWAHATI 6, ASSAM
2:THE DIRECTOR GENERAL OF POLICE .
POLICE HEADQUARTER
ULUBARI
GUWAHATI
ASSAM
3:THE ADDITIONAL INSPECTOR GENERAL OF POLICE (AP)
ULUBARI
GUWAHATI ASSAM
4:THE COMMANDANT 21st AP(IR) BATTALION
KATILCHERA
HAILAKANDI
ASSA
Advocate for the Petitioner : Mr. F. Z. Mazumder, Advocate
Advocate for the Respondent : Mr. H. Sarma, Advocate
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BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 13-12-2022 Heard Mr. F. Z. Mazumder, learned counsel appearing on behalf of the petitioner. Also heard Mr. H. Sarma, learned counsel appearing on behalf of all the respondents.
2. The instant writ petition has been filed challenging the Order dated 18.06.2020 issued by the Commandant 21 st AP (IR) Battalion Katlicheera as well as the Order dated 22.09.2020 issued by the Deputy Inspector General of Police AP, whereby the petitioner was dismissed from service with immediate effect and subsequently, the appeal so filed was also dismissed respectively.
3. For ascertaining as to whether in the instant case any interference can be made under Article 226 of the Constitution, let this Court take into consideration the relevant facts involved.
4. The petitioner herein as alleged in the writ petition, was serving as a Constable in the Assam Police Department to the Govt. of Assam. Posted at 21 st AP (IR) Battalion Katlicheera, Hailakandi and was attached with Platoon No. 5 Camp Panchgram PS.
5. The petitioner was allowed to avail 21 days earned leave w.e.f. 05.01.2019 to 26.01.2019 vide an order dated 29.10.2018. However, the petitioner could not resume the duty on date, on account of sudden illness, which was continued for a long period of time.
6. It was further mentioned that final notices were issued to the petitioner on Page No.# 3/13 04.06.2019 through dak runner, which was received by the petitioner on 06.06.2019. It is also stated in the writ petition that the petitioner had submitted an application to the concerned authority along with relevant medical documents on 09.06.2019 with prayer for extension of his leave. Thereupon, there were subsequent notices served upon the petitioner, but on account of his prolonged illness, the petitioner could not resume his duty, for which the petitioner was placed under suspension on 13.11.2019 w.e.f. 27.01.2019 due to his over staying in the leave. Thereupon, on 09.01.2020, a show cause notice was issued 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. The said show cause notice have been enclosed as Annexure-D to the writ petition.
7. In terms with the said show cause notice, it was alleged that the petitioner was allowed 21 days earned leave w.e.f. 05.01.2019 to 26.01.2019, but the petitioner had not resumed his duty in due time. It further mentioned that the four notices were issued to the petitioner on 07.02.2019, 22.02.2019, 12.03.2019 and 04.06.2019 asking the petitioner to resume duty immediately, but the petitioner did not resume his duty nor made any correspondence in that regard. Under such circumstances, it was mentioned that the said action of the petitioner tantamounts to misconduct, indiscipline act and negligence, which rendered the petitioner unfit to be retained in disciplined service. In the said show cause notice, the petitioner was asked to submit his show cause within 10 days of the receipt of the communication provided he did not intend to inspect the documents, which have relevance with the issue under enquiry. It was also mentioned that, in the circumstance, that the petitioner wanted to inspect any document, he should write to the issuing authority, i.e., the Disciplinary Authority for the same within seven days from the date of receipt of the communication and submit written explanation thereafter within ten days from the date of completion of inspection. The petitioner was also given the opportunity to state in his written statement as to whether he would desire to be heard in person Page No.# 4/13 and the petitioner was permitted to seek the assistance of any other government servant approved by the Disciplinary Authority. However, the petitioner could not engage a legal practitioner unless the Disciplinary Authority permits. Further to that, with the said show cause notice, certain documents have been enclosed along with details given who could be witnesses. It further appears from the records as produced by Mr. H. Sarma that along with said show cause notice, the Statement of the Allegation was also enclosed therewith.
8. The petitioner on receipt of the show cause notice submitted written reply on 03.02.2020. Interestingly, in the said reply so submitted, the petitioner had stated that, upon receiving the said show cause notice, he had resumed his duty. Further, he had stated that he has been suffering from illness and submitted leave extension petition time to time. He further stated that upon resuming his duty, his uncle suffered from brain stroke, for which he being the guardian in the family had to take him to Apollo hospital in Chennai, for which he could not immediately resume back to his duty. Further to that, he had mentioned that he promised and declared not to do such activities in future and also requested to have mercy in his case, as it had happened for the first time.
9. Pursuant to the receipt of the said show cause notice, a departmental proceedings was drawn up against the petitioner, which was registered and numbered as D.P. No. 02/2020 and one ABI Ramkrishna Mandal (QMI) of the unit was appointed as the Enquiry Officer to conduct the enquiry.
10. It may also be relevant to take note of that the petitioner by a separate communication had requested the Disciplinary Authority to remove his suspension on account of his wife's illness as it was difficult to meet both ends. Under such circumstances, vide an order dated 15.02.2020, the petitioner was released from suspension, however, the D.P. was directed to be continued.
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11. The records upon being produced by Mr. H. Sarma, clearly show that pursuant to the recording of the statement of the witnesses, the petitioner was asked to cross examine, which he declined. Thereupon, the petitioner's statement was also recorded.
12. Before further proceeding, it is also relevant to take note of that in the writ petition as well as in the affidavit-in-reply, the petitioner have not filed any documents in support of his medical ailments. However from the records, it reveal that there are various medical certificates issued by a doctor from S. M. Dev Civil Hospital, Silchar. From the said medical documents, it revealed that it was certified that the petitioner was suffering from Asthmatic bronchitis and he was advised to be under treatment and rest for 20 days, 12 days, 12 days, 15 days, 10 days and almost for three months. The medical certificates, however, would show that the period mentioned therein only covers uptil 15.06.2019. It is also relevant to take note of that apart from those certificates, the petitioner had neither produced any other document before the enquiry proceedings nor have also produced the doctor who had been treating the petitioner.
13. The Enquiry Officer after taking note of various statements recorded vide a report dated 16.03.2020, came to a finding that as per the available medical documents, it was found that the petitioner had submitted a medical certificate for the period from 27.01.2019 to 15.06.2019 and could not submit reasonable documents for remaining Over Stay Leave (OSL) period w.e.f. 16.06.2019 to 03.12.2019, i.e., 170 days and under such circumstances, submitted the report holding that the charge of gross misconduct, indiscipline act and negligence of duty have been proved against the petitioner beyond all reasonable doubts.
14. It is also interesting to take note of that the petitioner, who had joined after Page No.# 6/13 his suspension was revoked, again did not attend office, that too without taking any leave. Under such circumstances, on 16.03.2020, another notice was issued to the petitioner asking him to resume duty immediately as departmental proceedings would be initiated thereupon.
15. It further appears from the records that on 20.03.2020, a second show cause notice was issued to the petitioner, whereby the petitioner was asked to reply to the show cause within ten days, in view of the findings of the enquiry in connection with D P Case No. 02/2020. A copy of the said findings of departmental proceedings was also enclosed to the said show cause notice.
16. The record reveals that the petitioner did not reply to the second show cause notice. The impugned order was passed on 18.06.2020, holding inter-alia that the petitioner had over stayed leave of 310 days w.e.f. 27.01.2019 to 02.12.2019. Further to that, the petitioner had also been absent from duty w.e.f. 08.03.2020 till the date of passing of the said order dated 18.06.2020, which makes it 101 days. It was also mentioned that the petitioner was awarded leave without pay (LWP) for 9 days and EOL for 616 days. In that view of the matter, the Disciplinary Authority came to a finding that the petitioner was unfit to be retained in disciplined force like Assam Police and accordingly, he was dismissed from service with immediate effect.
17. The petitioner being aggrieved had preferred an Appeal dated 07.08.2020 before the Director General of Police, Assam. The Additional Director General of Police (T & P), Assam vide an order dated 22.09.2020 having not found any merit in the Appeal and more so taking into consideration that the petitioner was a member of disciplined force, did not interfere with the order of the Disciplinary Authority dated 18.06.2020. Both the Orders dated 18.06.2020 and 22.09.2020 have been assailed before this Court under Article 226 of the Constitution.
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18. The respondent no. 4 had filed an affidavit-in-opposition. In the said affidavit-in-opposition, the facts already narrated herein above have been duly reiterated, apart from that, it was mentioned that pursuant to the said second show cause notice dated 20.03.2020, the petitioner did not reply, for which a reminder notice was again issued to him on 04.06.2020 and the petitioner then also did not reply. It was also mentioned that the petitioner is a habitual absentee and as such, in a discipline service like that of the Assam Police, the act of the petitioner in not resuming his duty, in-spite of notices having been issued four times amounts to misconduct and indiscipline conduct and as such, the respondent Disciplinary Authority have rightly on the basis of enquiry report passed the impugned Order dated 18.06.2020, which was subsequently reaffirmed vide the Order dated 22.09.2020.
19. It further appears from the record that the petitioner had filed affidavit-in- reply, wherein various provisions of law as well as certain judgments of the Supreme Court have been referred to. A new case was sought to be developed in the said affidavit-in-reply, to that effect that the petitioner had submitted an application for documents on 24.06.2020, but was not furnished on the ground that it was too late to furnish copy, as the final order on the departmental proceedings have already been passed on 18.06.2020. It was the case of the petitioner that he has been prejudiced on account of not furnishing of the said documents, for which, he could not prepare his defence properly in absence of those relevant documents. It is pertinent to take note of that such allegations have been made by the petitioner is without any material particulars as to what documents have been sought for by the petitioner, which were not given.
20. I have heard the learned counsels for the parties and have also perused the materials on record. Fundamental Rule 67 of the Fundamental Rules and Subsidiary Page No.# 8/13 Rules applicable to Assam categorically mandate that the leave cannot be claimed as a matter of right. When the exigencies of public services so require, discretion to refuse or a revoke a leave of any description is reserved to the authority empowered to grant it.
21. In the instant case, the materials on record would clearly show that the petitioner was granted the earned leave up-till 26.01.2019. Thereupon, the petitioner did not resume his duties. As many as four notices were issued to the petitioner directing the petitioner to resume duties however, on taking the ploy of the medical ailment, the petitioner did not join his service. The documents as is available from the records show that the petitioner had submitted certificates from a particular doctor of S. M. Dev Civil Hospital Silchar, for the period from 27.01.2019 to 15.06.2019. The said documents has however was not backed by any other documents to show that the petitioner was actually suffering from any ailment in that regard or for that matter the petitioner was incapable of discharging his official duties as is required. However, pursuant to 15.06.2019, there has been no relevant documents submitted, in respect of the claim that the petitioner was suffering on account of medical ailments. In fact the stand of the petitioner in the writ petition is contrary to his show cause reply dated 03.02.2020, in so far as period from 15.06.2019 onwards, inasmuch as in the writ petition, it is the case of the petitioner that the petitioner was suffering from medical ailment, whereas in the show cause reply, it is his stand that on account of a brain stroke suffered by one of his uncle, the petitioner had taken him to Apollo Hospital, Chennai. No medical documents or any document, whatsoever was placed on record to show that the petitioner's uncle suffered from a brain stroke and the petitioner had accompanied him to Chennai for his treatment.
22. The record further reveals that just prior to the show cause notice being issued, the petitioner requested the authorities concerned to revoke his suspension, Page No.# 9/13 which was effected on 27.01.2019 and upon his request, the suspension was revoked on 15.02.2020. Thereafter, the petitioner again did not attend to his duty, which resulted in again issuance of further notices for resumption of the duty. This is conduct of the petitioner, who is a member of disciplined force.
23. From the perusal of the writ petition, it is alleged that Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964, (for short the Rules of 1964) was not complied with. This court fails to understand the basis of the case of the petitioner inasmuch as the petitioner was duly issued a show cause notice accompanied by the Statement of Allegation. Along with the said show cause notice, the petitioner was also furnished the various documents as well as the list of witnesses. It is also clear from the said show cause notice that the petitioner was given the opportunity to inspect the documents as well as also to take the help of a government servant approved by the Disciplinary Authority.
24. To the said show cause notice, the petitioner had duly submitted his reply, wherein he has not mentioned as regards inspection of any document, which he wished to do so or seeking copies of any documents therein. It was clearly mandated in the said show cause notice that the petitioner had to do so within the period of seven days from the date of receipt of the said show cause notice. The petitioner was also given due opportunity to cross examine the witnesses, which the petitioner declined. Thereupon, the enquiry report was submitted on 16.03.2020, holding inter- alia, the petitioner was on over stay leave for a period of 310 days w.e.f. 27.01.2019. In the meantime, as already stated herein above, though the petitioner's suspension was revoked and the petitioner was allowed to resume his duties, but he again did not resume his duties, which necessitated issuance of two notices asking the petitioner to resume his duties.
25. Be that as it may, pursuant to enquiry report submitted on 16.03.2020, there Page No.# 10/13 were two notices issued asking the petitioner to show cause as to why appropriate punishment should not be imposed upon him in terms of the report of the enquiry proceedings. A copy of the said enquiry report was also forwarded with the notice. The petitioner however, did not choose to reply to the same, in-spite of having received the same. Thereupon, vide an order dated 18.06.2020, the Disciplinary Authority has passed the order taking into account the conduct of the petitioner that the unauthorized absence of the petitioner in a disciplined force of the Assam Police amounts to negligence of duty, indiscipline and gross misconduct, and accordingly, dismissed the service of the petitioner with immediate effect. It further appears from the records that the Appellate Authority have also duly taken note of all the relevant aspects of the matter while dismissing the appeal of the petitioner.
26. In that view of the matter, the question of there being violation of any principles of natural justice or any violation to Rule 9 of the Rules of 1964, in the opinion of this Court is totally misconceived.
27. Now let this court take into consideration as regard the proportionality of the punishment viz-a-viz the allegations charged against the petitioner. The law is well settled that the court should be cautious while considering the case of an officer/soldier/employee of disciplined force and the same yard stick and the sympathetic consideration as in the other case cannot be applied. This was observed by the Supreme Court in the case of Dalbir Singh Vs. Union of India and anothers reported in (2019) 7 SCC 84.
28. In the instant case, it would be seen that the petitioner in-spite of various opportunities being granted and notices were issued, did not resume his duties, which clearly shows that the petitioner is guilty of negligence of duty, indiscipline act and gross misconduct, which have been duly found so in the enquiry report submitted on 16.03.2020.
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29. In a recent judgment of the Supreme Court, rendered in case of Union of India vs. Subrata Nath reported in 2022 SCC Online SC 1617, it was observed that the Disciplinary Authority and Appellate Authority are vested with exclusive power to examine the evidence forming part of the enquiry report. On finding the evidence to be adequate and reliable during the departmental enquiry, the Disciplinary Authority has the discretion to impose on delinquent employee keeping in mind the gravity of misconduct. However, in exercise of the powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily re-appreciate the evidence to arrive at its own conclusion in respect of penalty imposed unless and until, the punishment imposed is so disproportionate to the offence that it would shock the conscious High Court/ the Tribunal or is found to be bereft of reasons. It was further observed that if the punishment imposed on the delinquent employee is such that it shocks the conscious of the High Court or the Tribunal, that the Disciplinary Authority or the Appellate Authority may be called upon to reconsider the penalty imposed and it is only in exceptional circumstances, which needs to be mentioned, the High Court/the Tribunal should decide to impose the appropriate punishment by itself and by offering cogent reason. Paragraph nos. 20, 21, 27 and 28 being relevant are quoted herein below:
"20. A Constitution Bench of this Court in State of Orissa (supra) held that if the order of dismissal is based on findings that establish the prima facie guilt of great delinquency of the respondent, then the High Court cannot direct reconsideration of the punishment imposed. Once the gravity of the misdemeanour is established and the inquiry conducted is found to be consistent with the prescribed rules and reasonable opportunity contemplated under the rules, has been afforded to the delinquent employee, then the punishment imposed is not open to judicial review by the Court. As long as there was some evidence to arrive at a conclusion that the Disciplinary Authority did, such an order becomes unassailable and the High Court ought to forebear from interfering. The above view has been expressed in Union of India v. Sardar Bahadur.
21. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine Page No.# 12/13 the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor.
27. We are unable to commend the approach of the learned Single Judge and the Division Bench. There was no good reason for the High Court to have entered the domain of the factual aspects relating to the evidence recorded before the Inquiry Officer. This was clearly an attempt to reappreciate the evidence which is impermissible in exercise of powers of judicial review vested in the High Court under Article 226 of the Constitution of India. We are of the opinion that both, the learned Single Judge as well as the Division Bench, fell into an error by setting aside the order of dismissal from service imposed on the respondent by the Disciplinary Authority and upheld by the Appellate Authority.
28. We find ourselves in complete agreement with the findings returned by and conclusion arrived at by the Disciplinary Authority, duly confirmed by the Appellate Authority and upheld by the Revisional Authority in respect of both the Articles of Charge levelled against the respondent and the punishment imposed on him. The respondent being a member of the disciplined force, was expected to have discharged his duty diligently. His gross negligence and dereliction of duty has resulted in theft of 800 kgs. copper wires from the spot where he was performing his duty. Further, the records reveal that the respondent did not mend his ways during thirteen years of service rendered by him and was awarded eight punishments for various delinquencies out of which, three punishments included stoppage of increment on two occasions for one year without cumulative effect twice and stoppage of increment for two years without cumulative effect on one occasion. In such circumstances, the desirability of continuing the respondent in the Armed Forces is certainly questionable and the Disciplinary Authority could not be expected to wear blinkers in respect of his past conduct while imposing the penalty of dismissal from service on him.
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30. In the backdrop of the law laid down by the Supreme Court, this Court is of the opinion that the findings arrived at by the enquiry report, clearly shows that the petitioner is found unfit for service on account of intermittent and unauthorized leave for which the petitioner did not have a reasonable explanation. Under such circumstance, there is no point in continuing the petitioner in service either by reinstating him by imposing punishments like stoppage of increment etc. The punishment so imposed in the opinion of this Court, does not shock the conscience of this court taken into consideration that the petitioner was a member of disciplined force.
31. This Court finds no merit in the instant writ petition accordingly the instant writ petition stands dismissed.
32. The case record so produced by the learned counsel for the respondents is returned.
JUDGE Comparing Assistant