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2002 DIGILAW 304 (GAU)

Pradip Ch. Medhi v. State of Assam

2002-07-22

RANJAN GOGOI

body2002
RANJAN GOGOI, J.— Heard Mr. K. Bhattacharjee, learned counsel for the petitioner and Ms. U. Bamah, learned standing counsel for ASTC. 2. The challenge herein is in respect of the order dated 16.6.2000 (Annexure-4) removing the petitioner from service under the Assam State Transport Corporation on the ground of unauthorized absence from duty on 3rd, 10th, 26th, 27th August, 1999,1st, 4th, 21st, 28*, 29*, and 30th September, 1999 and 5th and 7th October, 1999 (total 12 days). 3. The petitioner was served with a charge memo dated 25.10.99 levelling the charge of absentation without information or authorization for the period mentioned in the aforesaid show cause, as already recorded herein. The petitioner shows cause and while admitting that he was indeed absent from duty on the days mentioned, explanation were offered to why the petitioner was absent. The petitioner having admitted the unauthorized absence, the authority thought it fit to remove the petitioner from service by order dated 16.6.2000. Curiously by the same order the period of absence of the petitioner on the date/dates mentioned had been regularised by granting extra ordinary leave without pay. 4. Mr. K. Bhattacharjee learned counsel for the petitioner, on the aforesaid facts fortified by the decision of the Apex Court in the case of State of Punjab ~Vs- Baskshish Singh reported in 1999 (1) UJ18 5C, has contended that the period of unauthorized absence itself being regularised by grant of extra ordinary leave without pay, the charge of unauthorized absence has no legs to stand. Alternatively it has been argued by the learned counsel for the petitioner that in view of the fact of unauthorized absence is of 12 days only, the punishment imposed is excessive and needs to be interfered in exercise of power under Article 226. 5. Ms. U. Baruah, learned counsel for the respondent-corporation has vehemently argued that the present is not a fit case for interference with the punishment imposed, inasmuch as the writ petitioner is a habitual absentee having remained unauthorisedly absent on several occasions in the past. Learned counsel further submits that all such lapses on the part of the writ petitioner were earlier condoned and it is the cumulative effect of the past conduct of the writ petitioner that had led to the imposition of the punishment in question. 6. The rival contentions advanced by the parties have been duly noted. Learned counsel further submits that all such lapses on the part of the writ petitioner were earlier condoned and it is the cumulative effect of the past conduct of the writ petitioner that had led to the imposition of the punishment in question. 6. The rival contentions advanced by the parties have been duly noted. To judge the correctness of the impugned order the second contention raised on behalf of the writ petitioner regarding the adequacy of the punishment imposed having regard to the facts and circumstances, also need not be gone in to inasmuch as in the case of State ofPunjab -Vs- Baskshish Singh (Supra) the. Apex Court had clearly laid down the law that if a dismissal is on account of unauthorized absence from duty, the regularisation of the period of absence from duty by means of extra ordinary leave without pay has to necessarily result in failure of the charge levelled. In the present case as already noted the period of unauthorized absence for which the writ petitioner had been removed from service has been regularised by grant of extra ordinary leave without pay. 7. The action of the respondents in regularising the period of absence of the petitioner and at the same time removing him from service cannot be approved and the impugned removal of the petitioner from service needs to be interfered with, which I do hereby do. Consequently the impugned order dated 16.6.2000 in so far it relates to removal of the petitioner is set aside and the writ petition is allowed. 8. The writ petitioner has to be naturally reinstated in service. However having regard to the financial difficulties faced by the corporation as projected by the learned counsel for the respondent as also the fact that the petitioner had not rendered any service for the period in question, the writ petitioner would be entitled to 50% of the back wages on the principle that had it not been for the impugned order the writ petitioner would have continued in service and earned his salary. 9. The writ petition shall stand disposed as indicated hereinabove.