Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 213 (GAU)

Niranjan Singh v. State of Assam

2004-03-25

RANJAN GOGOI

body2004
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. A. M. Buzarbaruah, learned counsel for the petitioner and Mr. R.K. Borah learned Government advocate, Assam. 2. The facts, in brief, may be noted at the outset. The writ petitioner, who was working as a Constable in the Assam Police Radio Organization and posted at Dispur, was served with a charge memo dated 27th October, 1999 asking the petitioner to submit his written statement in defence with regard to his alleged absence from duty without leave following the expiry of 5 (five) days Casual Leave with effect from 27.11.98. According to the writ petitioner, on the expiry of the aforesaid Casual Leave, as he fell ill, he could not join duties. The charge memo dated 27.11.98 was not served on him. Pursuant to the aforesaid charge memo, an enquiry was held which was conducted ex parte and the petitioner came to know of the aforesaid developments when a copy of the Enquiry Officer's report along with the punishment proposed was communicated to the writ petitioner. Thereafter, the writ petitioner submitted a representation asking the authority to recall the proposed action and the same not having been done and the petitioner having been discharged from service by order dated 17.4.2000, the instant writ petition has been filed after exhausting the departmental remedies. 3. Mr. Buzarbaruah, learned counsel for the petitioner in his very strenuous has contended, by referring to the pleadings on record that from 5.12.98 to February 2000, the petitioner was suffering from Infective Hepatitis and he was under medical treatment of one Dr. D. Deka, who was attached to the ESI Dispensary at Dispur. Relying on the medical certificate produced by the petitioner to the above effect, the learned counsel has contended that after the doctor certified the petitioner to be fit for duties in February 2000, the petitioner was detained in police custody in connection with a criminal case. He was released on bail on 4th April, 2000 where after, he immediately reported for duty. On so reporting, the communication of the authority enclosing a copy of the Enquiry Officer's report, as well as the proposed punishment, was handed over to the writ petitioner. Mr. Buzarbaruah, learned counsel for the petitioner, on the above facts, has contended that the petitioner was prevented by good, sufficient and compelling reasons from participating in the enquiry held. On so reporting, the communication of the authority enclosing a copy of the Enquiry Officer's report, as well as the proposed punishment, was handed over to the writ petitioner. Mr. Buzarbaruah, learned counsel for the petitioner, on the above facts, has contended that the petitioner was prevented by good, sufficient and compelling reasons from participating in the enquiry held. The departmental proceeding against him having been concluded ex parte in the circumstances cited above, has caused serious prejudice to the petitioner. The petitioner would be able to justify his absence from duty if an opportunity is given to him and, therefore, this Court should cause appropriate interference with the orders passed by the authority and direct a de novo consideration of the charges levelled. Mr. Buzarbaruah, learned counsel has further pointed out that though the petitioner had brought his difficulties to the notice of the authority after receipt of the second show cause notice, in the impugned order of discharge dated 17.4.2000, it has been recorded that the petitioner has not submitted any reply to the second show cause notice. , 4. Mr. R. K. Borah, learned Government Advocate, Assam appearing for the official respondents has placed before the Court the counter affidavit filed on behalf of the said respondents. According to the learned State counsel, after the leave of the petitioner had expired and he had not reported for duty, several attempts were made to require the petitioner to report for duty. When all such attempts failed, a departmental proceeding was drawn up by Memo dated 27.10.99. All attempts were made to serve the charges on the writ petitioner and to ensure his presence in the enquiry proceeding; however, all such efforts had yielded no positive results as the whereabouts of the petitioner were not known. Placing the affidavit filed, the learned Govt. advocate, argued that the long absence of the petition or was on account of the fact that the petitioner was evading arrest in connection with the criminal case instituted against him, i.e., Dispur P.S. Case No. 1209/98. The second show cause notice dated 22.3.2000 way served on the father of the petitioner on 26.3.2000 and the petitioner must have come to know of the same upon his release on bail on 4.4.2000, The reply to the said notice was received by the respondent-authority on 17.4.2000 by which time the order of discharge had already been passed. The second show cause notice dated 22.3.2000 way served on the father of the petitioner on 26.3.2000 and the petitioner must have come to know of the same upon his release on bail on 4.4.2000, The reply to the said notice was received by the respondent-authority on 17.4.2000 by which time the order of discharge had already been passed. In any case, it is argued, the difficulties of the petitioner which had compelled him to remain absent was expressed in the departmental appeal filed by the petitioner which were duly considered and rejected by the appellate authority by order dated 9.1.2001. According to the learned State counsel, in the enquiry conducted ex parte, witnesses in support of the charges were examined and the conclusions of the Enquiry Officer were based on the materials adduced. 5. The Headings and oral arguments advanced on behalf of the rival parties reveal that the petitioner's absence from duty from 5.12.98 till sometime in April 2000 is not disputed by the writ petitioner. What the writ positioner had offered are justifications for the aforesaid absence. That the enquiry had been conducted ex parte and the writ petitioner is now available, by itself, would not be a sufficient ground to interfere with the proceedings already concluded. The writ petitioner, to be entitled a de novo consideration of the charges levelled must be in a position to satisfy the Court that the reasons for his absence in the departmental proceeding as well as for his prolonged absence from duty were pressing and compelling. It is only on adequate satisfaction, reached by the Court, on the materials adduced, that any order to re-open the proceedings can be passed. The writ petitioner was staying at Dispur during the entire period of his absence from duty, a fact which is reflected from the arguments advanced by the learned counsel for the petitioner. The petitioner's place of work was near about Dispur. Surely, if the petitioner was suffering from any serious ailment which would justify his absence from work for over 2 years, the petitioner ought to have drawn the attention of his superior authority to the said facts, a course of action which does not appear to have been resorted to. The petitioner's place of work was near about Dispur. Surely, if the petitioner was suffering from any serious ailment which would justify his absence from work for over 2 years, the petitioner ought to have drawn the attention of his superior authority to the said facts, a course of action which does not appear to have been resorted to. There is also no material laid before - the Court to show that the petitioner had availed of the medical facilities which are available in Guwahati including treatment in Medical College in Guwahati, a course of action which would have been reasonable if the ailment of the petitioner had been sufficiently serious. Instead, armed with a certificate issued by another doctor to the effect that the petitioner was suffering from Infective Hepatitis, he has invoked the writ jurisdiction of this Court seeking interference with the departmental proceeding and the decisions taken on the basis thereof. Whether the ailments the petitioner had suffered, were serious enough to warrant his absence from duty for such prolonged period is not even disclosed by the certificate produced. The cryptic, description of the illness and the absence of other necessary materials leaves this Court with the impression that the grounds now sought to be advanced are not cogent and satisfactory grounds for re-opening what has already been concluded. If the petitioner, in any way, was handicapped, some more authentic and convincing materials should have been laid before the Court in the absence of which, I am inclined to take the view that the writ petitioner has failed to make out any case for interference by this Court with the punishment imposed. That the difficulties of the petitioner as projected in the reply to the second show cause notice were considered by the departmental appellate authority while rejecting the appeal filed by the petitioner, should, be sufficient to disentitle the petitioner to any further consideration at the hands of the authority, as repeatedly urged by the learned counsel for the petitioner. 6. For all the aforesaid reasons, the writ petition is without any merit. It is accordingly dismissed. However, having regards to the facts and circumstances of the case, there shall be no order as to costs. Petition dismissed