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2008 DIGILAW 145 (GAU)

Sirajul Haque v. State of Assam

2008-02-19

HRISHIKESH ROY

body2008
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. H. Rahman, learned Counsel appearing for the Petitioner. Also heard Mr. H.K. Barman, learned Government advocate who represents the Respondents. 2. The Petitioner who was working as a Havildar (A) in the 7th Assam Police Bn., is before this Court to challenge the order dated 30.10.06 (Annexure-IX), whereby he has been dismissed from service in pursuant to a disciplinary proceeding and inquiry conducted against him. The Petitioner was earlier placed under suspension by order dated 28.08.2005 for gross misconduct. 3. Mr. H. Rahman, appearing for the Petitioner submits that the findings of the inquiry officer that the charge against the Petitioner has been proved, cannot be made the basis for the penalty inflicted on him, since the said inquiry was an ex-parte inquiry. The learned Counsel also submits that the requisite documents to enable the Petitioner to defend himself against the charges made, were not furnished to him and, therefore, the disciplinary proceeding have been vitiated and cannot be made the basis for the impugned dismissal order. The learned Counsel also submits that the Petitioner has made several communications indicating the reasons as to why he could not be present on various dates of the inquiry and since the said reasons are bona fide reasons, such as medical checkup, medical treatment and being summoned to appearance as a witness in court, the inquiry officer should not have conducted an ex parte inquiry against the Petitioner. 4. Par contra, Mr. H.K. Barman, learned Government advocate submits that soon after the Petitioner was placed under suspension on 28.08.2005, the Petitioner became unavailable and untraceable w.e.f. 30.10.2005. During this period, the Petitioner avoided receiving communications from the disciplinary authorities, and there after remained absent from the disciplinary proceedings by citing one reason or Anr., the proceeding had to be conducted ex parte. Therefore since the Petitioner was the defaulting party, he cannot claim denial of fair opportunity in the disciplinary proceedings. 5. Learned Government counsel refers to the 4 charges against the Petitioner and submits that considering the serious charges, which have been proved in the inquiry, the punishment of dismissal was rightly ordered against the Petitioner. 6. The charges against the Petitioner are extracted hereinbelow for ready reference: a) While the Petitioner was posted at Bn. HQ. 5. Learned Government counsel refers to the 4 charges against the Petitioner and submits that considering the serious charges, which have been proved in the inquiry, the punishment of dismissal was rightly ordered against the Petitioner. 6. The charges against the Petitioner are extracted hereinbelow for ready reference: a) While the Petitioner was posted at Bn. HQ. Charikhula on the night of 17.10.05 at about 1.30 A.M. he entered into the quarter of CN 728 Anil Boro by opening the door of the quarter from outside and molested and attempted to commit rape to Miss Arati Basumatary, the sister-in-law of Shri Boro and fled away from the quarter while Arati Basumatary call her sister sleeping in Anr. room of the same quarter. b) Secondly the Petitioner had deceitfully without authority acquired copy of message No. Bn. 7/1 Pln/05/141 dated 28.10.05 from APRO office charikhula by misrepresenting the fact that he has been authorized by the authority to receive a copy. c) Thirdly, he has been remained unauthorized absent from the Bn. HQ with effect from 30.10.2005 without permission from the competent authority. d) Fourthly while he absenting from Bn. HQ. with effect from 30.10.2005 he deceitfully acquired message No. Bn.7/1 Pln/05/141 dated 28.10.05 through the CN 111 Mazid Hussain from Chapar Pin No. 1 without proper authority. All these tantamount to misconduct, indiscipline conduct, negligence of duty, unbecoming of police personnel disobedience to superior and dereliction of duty on his part which render him unfit to be retain in a discipline force like Assam Police. Therefore, he was charged with indiscipline conduct, negligence of duty, unbecoming of a police personnel disobedience to superior and dereliction of duty. 7. In a matter of disciplinary proceeding and punishment, the scope for judicial intervention by a writ court are limited and only when the court finds that a delinquent was unfairly treated in the matter of inquiry, and there has been breach of principles of natural justice, the court may examine the merit of a proven charge against the delinquent in pursuant to a disciplinary proceeding. 8. What is seen in this case is that the Petitioner during the relevant period, stayed away from his home by design therefore the show-cause-notice sent to his residence through a special messenger on 24.02.2006, could not be served on him. On 09.03.06 Anr. 8. What is seen in this case is that the Petitioner during the relevant period, stayed away from his home by design therefore the show-cause-notice sent to his residence through a special messenger on 24.02.2006, could not be served on him. On 09.03.06 Anr. special messenger was sent with notices to the Petitioner's residence but he was again untraceable. His father who was at the residence was also feigned ignorance about Petitioner's whereabouts. On 10.03.2006 Anr. special messenger was deputed to the Petitioner's residence but even then the Petitioner stayed away and the messenger had to return back after informing his father and also obtaining signature of the father in the show-cause-notice. Subsequently on 5 different occasions, communications where sent to the Petitioner (which were duly received by his father), to report to the headquarter so that the requisite documents may be furnished to the Petitioner (as he was found absent on several occasions and could not be served at his home), but the Petitioner never turned up. It is no record that his father received all the 5 notices sent to his home address. The details of the 5 notices are noted hereinbelow: I. Memo No. Bn. 7/R/2005/6444-45 dated 29.11.05. II. Memo No. Bn. 7/R/2005/6762-63 dated 16.12.05 III. Memo No. Bn. 7/R/2006/29-30 dated 03.01.06. IV. Memo No. Bn. 7/R/2006/329-30 dated 21.01.06. V. Memo No. Bn. 7/R/2006/554-55 dated 08.02.06. 9. After the inquiry officer was appointed, attempt to serve the Petitioner was again made. The Petitioner was informed to appear before the inquiry officer on 13.04.06. But the Petitioner remained absent. The Petitioner was again informed about the next date of the inquiry through the O.C. of the Tamarhat P.S. and the said notice dated 26.04.06 was duly received by the Petitioner's father, as the Petitioner continued to evade notices, but yet again the Petitioner did not turn up. 10. In fact on the body of the notice dated 24.06.06 issued by the Inquiry Officer, the Petitioner in one of his rare acknowledgment, indicated on the body of the notice that as per order of the High Court in W.P. (C) 2327/06, he is not in a position to accept any documents nor he is in a position to appear in the inquiry proceeding. 11. 11. As reference to a High Court case was made by the Petitioner in his above endorsement, records of W.P. (C) No. 2327/06 filed by the Petitioner were requisitioned. This was found to be a case filed by the Petitioner to challenge the suspension order dated 10.10.05 and also for courts direction for release of subsistence allowance due to him. This case where Rule was issued by the court on 08.05.06 is still pending. But there is no order passed by the court in W.R. (C) No. 2327/06, whereby the Petitioner was restrained from receiving any documents from the disciplinary authority or participating in the inquiry proceedings. 12. From the above narratives, I feel that although the disciplinary proceedings against the Petitioner were conducted ex-parte and the Petitioner may not have been served with some of the documents, the said exigencies occurred, only because the Petitioner deliberately kept himself out of reach of the notice server. Because of the absence of the Petitioner, some of the notices were also served on the Petitioner's father, and it is reasonable to assume that Petitioner would have been aware of receipt of such notices by his father, as it is not the case of the Petitioner that his father had not kept him informed about the receipt of notices. Therefore it appears to be a case of deliberate avoidance of notice by the Petitioner. 13. As is already noted is one of the few notices, which could actually be served on the Petitioner, i.e., the notice dated 24.06.06, the Petitioner had made an endorsement on the body of the said notice stating that because of order passed by the High Court in W.P. (C) 2327/06, he is not in a position to receive any notice from the police headquarter and is also not in a position to participate in the inquiry. The records of W.P. (C) 2327/06 reveals that this was a false claim made by the Petitioner. But nevertheless this indicates the state of mind of the Petitioner and his attempt to avoid all communications from his employer. 14. Having regard to the above circumstances, I am of the considered view that the Petitioner deliberately kept himself out of the reach of the process servers and the notice servers sent by the disciplinary authority. But nevertheless this indicates the state of mind of the Petitioner and his attempt to avoid all communications from his employer. 14. Having regard to the above circumstances, I am of the considered view that the Petitioner deliberately kept himself out of the reach of the process servers and the notice servers sent by the disciplinary authority. It cannot also be said that he was unaware of the charges and the disciplinary proceeding initiated against him, since was already placed under suspension which he challenged in court and some of the notices were also served on his father. According to me he deliberately created a situation whereby the disciplinary authorities had to proceed ex-parte against him. 15. The absence of the Petitioner on various dates before the Inquiry Officer on one pretext or Anr., as has been reflected in the Petitioner's communication dated 9.8.06 to the inquiry officer (Annexure-VII), clearly reveal that there was a deliberate attempt by the Petitioner to avoid participation in the Inquiry Proceeding. In fact the Petitioner also falsely represented that he is unable to receive any communication from the police headquarter and is unable to participate in the inquiry proceeding, because of order passed by the High Court in W.P. (C) 2327/06. 16. In view of the above, I am of the considered opinion that invoking of equitable writ power in favour of the Petitioner, to interfere with the disciplinary proceeding and the inflicted penalty would not be justified. 17. Accordingly this writ petition is held to be meritless and the same is dismissed.