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2009 DIGILAW 635 (GAU)

Bhogeswar Borah v. State of Assam

2009-09-03

AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. Being aggrieved by the order dated 3.4.2002 passed by the Commandant, Assam Commando Battalion, Mandakata, North Guwahati, the disciplinary authority of the petitioner as well as the one dated 8.8.2003 by the Inspector General of Police (TAP), Assam, his departmental appellate authority, sustaining the penalty of discharge imposed on him, the petitioner seeks the intervention of this Court for redress. 2. I have heard Mr. P. Talukdar, learned Counsel for the petitioner and Mr. B.J. Ghosh, learned State counsel for the respondents. 3. The pleaded renderings of the parties would be necessary to appropriately appreciate the rival submissions. The petitioner while serving as a Constable with the Commando Battalion, Mandakata, North Guwahati in the District of Kamrup was served with a Memorandum of charges in the year 1998 containing the following imputations: While at Hqr. You were posted to pin No. 2 Geleky P.S. vide this office Memo No. Commndo/R/98/2206-12, dated 6.3.1998 and you left the Bn. Hqr. For your place of posting on 12.3.1998, however, instead of joining of your place of posting you remained untraced and unauthorizedly absent w.e.f. 12.3.1998 a.m. and returned back at this Bn. Hqr. On 28.5.1998 after absconding from duty for 77 days. During hour absence period you were involved in commission of dacoity under North Lakhimpur P.S. vide N.L.P.S. Case No. 364 of 1998 under Section 398, IPC. During investigation it was learnt that you were the master mind in organizing the dacoity and you were evading police arrest till 28.5.1998 after commission of the dacoity. Two of your associates were apprehended by the public while committing the crime but you managed to escape with other of your gang members. One hand-made revolver with 2 (two) live cartridges were recovered from arrested co-accused. Thereby he was charged with gross misconduct, dereliction of duty, criminal conspiracy and involvement in criminal activities. The written explanation submitted by the petitioner not having been found to be satisfactory, the proceeding was furthered under Section 7 of the Police Act, 1861 read with Rule 66 of the Assam Police Manual Part III and Article 311 of the Constitution of India. The petitioner participated in the proceeding and also offered his oral statement to the charges. He, however, did not examine any witness in defence. The petitioner participated in the proceeding and also offered his oral statement to the charges. He, however, did not examine any witness in defence. Eventually, by the impugned order dated 3.4.2002, the disciplinary authority being satisfied that the charges leveled against him had been proved, awarded the penalty of discharge from service. Being aggrieved, the petitioner preferred an appeal which, by order dated 8.8.2003 passed by the Inspector General of Police (TAP), Assam was also rejected. 4. The respondent No. 4 in his affidavit while affirming that the departmental proceeding had been conducted against the petitioner in strict compliance of the procedural safeguards embodied in Rule 66 of the Assam Police Manual and Article 311 of the Constitution of India, has stated that in all, nine witnesses were examined on behalf of the disciplinary authority and that both the charges against him stood proved. According to the answering respondent, as the petitioner was, thus, found to be guilty of gross misconduct, he was construed to be undesirable to be retained in the service as a member of the disciplined force and was accordingly imposed the penalty of discharge. 5. In his affidavit-in-reply, the petitioner while reiterating his averments made in the writ petition has brought on record the copy of the judgment and order dated 26.6.2008 passed by the learned Addl. Sessions Judge (FTC), Lakhimpur in Sessions Case No. 2(NL) of 2007 acquitting him from the criminal case referred to in the Memorandum of charges. 6. Mr. Talukdar has urged that having regard to the factum of the petitioner's acquittal in the criminal case, the order of discharge is unsustainable in law and is liable to be interfered with. He has submitted that though the petitioner due to inadvertence could not keep the respondent authorities apprised of the reason for his absence from duty on and from 12.3.2002, he in fact, had been attending his ailing wife during the relevant time, and therefore, a lenient and compassionate approach ought to have been adopted by the disciplinary authority. The learned Counsel has argued that having regard to the unblemished service career of the petitioner since 1998, the order of penalty is liable to be interfered with in the interest of justice. In support of his submissions, Mr. Talukdar has placed reliance on a decision of the Apex Court in G.M. Tank vs. State of Gujarat, (2006) 5 SCC 446 . 6A. In support of his submissions, Mr. Talukdar has placed reliance on a decision of the Apex Court in G.M. Tank vs. State of Gujarat, (2006) 5 SCC 446 . 6A. Mr. Ghosh with reference to the relevant official records, has urged that keeping in mind the nature of the charges leveled against the petitioner which were amply proved in the disciplinary proceeding, the order of the disciplinary authority discharging him from service ought not to be interfered with by this Court in the exercise of its power of judicial review. As the materials on record establish the charges against him, the factum of his acquittal in the criminal case on the measure of benefit of doubt, is not at all relevant for reconsidering the order of penalty. 7. The rival submissions and the documents have been appropriately considered. On a scrutiny of the records pertaining to the disciplinary proceeding, it appears that the same do not suffer from any impairment of non-observance of the procedural safeguards enshrined in Rule 66 of the Assam Police Manual Part III. Indeed, no argument has been advanced on behalf of the petitioner on this count. It transpires from the records that the petitioner had on 1.9.1998 submitted an explanation to the disciplinary authority to the effect that on being served with the posting order to join at Geleky P.S., he had left the Headquarter on 13.3.1998 for his home at village Dagati Panigaon, North Lakhimpur and having found his wife to be convalescing from the post delivery complaints, he stayed back at home to attend to her and in the result could not attend to his duties for 77 days. In the said explanation, the petitioner had admitted that his absence was without any leave from the authorities. Without however, categorically denying his involvement in the criminal case, he refuted the allegation of being the mastermind behind the commission of the offence alleged. He thereby also sought for some documents so as to enable him to submit his defence statement. The petitioner, however, has not expressed any grievance further in this regard and participated in the disciplinary proceeding without any demur. The written explanation of his was treated to be his written statement in the proceeding by the respondents. 8. The records reveal that in course of the proceeding, the disciplinary authority examined nine witnesses. The petitioner, however, has not expressed any grievance further in this regard and participated in the disciplinary proceeding without any demur. The written explanation of his was treated to be his written statement in the proceeding by the respondents. 8. The records reveal that in course of the proceeding, the disciplinary authority examined nine witnesses. The petitioner did not examine any witness in support of his stand. He, however, examined himself and reaffirmed the averments made in the written statement as above. The statements of eight witnesses in support of the charges including Shri Nemichand Sarmah, the informant in the criminal case are available on record. The said witness inter alia mentioned the name of the petitioner to be amongst the persons involved in the offence. This witness in particular, was not cross-examined by the petitioner and when offered the opportunity he declined to avail the same. 9. The disciplinary authority on a consideration of the evidence of the witnesses, the statement of the petitioner and the other materials on record disbelieved his (petitioner's) version that till 25.5.1998 he was attending his ailing wife at his home on the basis of the report submitted by the In-charge, Panigaon Out Post communicated vide W.T. message No. 286-288/98 dated 5.4.1998 to the effect that the police on visiting his house at the relevant time, did not find him there and that the inmates of the house had informed the police that he (petitioner) had left home to resume his duties on 31.3.1998. The disciplinary authority being of the opinion that the petitioner had absented himself from duty without any leave, concluded the charge No. 1 to be proved. On the basis of the testimony of the witnesses examined vis-a-vis the criminal charge, his prima facie involvement therein was also accepted. On a totality of such considerations, the order of discharge was passed construing that his retention in the disciplined force was undesirable. The departmental appellate authority though had not detailed the reasons, concurred with the findings of the disciplinary authority and dismissed the appeal. 10. The fact remains that the petitioner eventually had been acquitted in the criminal case by the judgment and order dated 26.6.2008 passed by the learned Addl. Sessions Judge (FTC), Lakhimpur in Sessions Case No. 2(NL) 2007. The departmental appellate authority though had not detailed the reasons, concurred with the findings of the disciplinary authority and dismissed the appeal. 10. The fact remains that the petitioner eventually had been acquitted in the criminal case by the judgment and order dated 26.6.2008 passed by the learned Addl. Sessions Judge (FTC), Lakhimpur in Sessions Case No. 2(NL) 2007. Noticeably, his acquittal has been on the benefit of doubt in absence of clinching evidence to establish his complicity in the offence. Based on the written instructions, Mr. Ghosh has apprised this Court that the judgment and order of acquittal has remained unchallenged as on date by the State. For all intents and purposes, therefore, as on date, he cannot be said to have been associated with the offence for which he had been tried by a court of law. Thus, though the disciplinary authority had ordered his discharge during the pendency of the criminal trial also on the consideration of his prima facie involvement in the criminal case, the same as on date, cannot be construed to be relevant. This view finds support from the determination made in G.M. Tank (supra). Two options are, thus, open at this juncture; either (i) to remit the matter to the disciplinary authority for reconsideration of the order of penalty or (ii) to decide on this aspect in the instant proceeding. It is submitted at the Bar that the petitioner at the relevant time had been holding the post of Constable. 11. Be that as it may, as the disciplinary action taken against the petitioner can be traced back to the year 1998 having regard to the time lag of 11 years in between, this Court considers it appropriate to take upon itself to decide on the penalty. This is so, as this Court is satisfied that even if the charge No. 2 may not hold against the petitioner as on date, the materials on record amply establish the factum of his unauthorized absence for 77 days. Even if, the petitioner's version of being at home attending his ailing wife is assumed to be correct, it was a serious dereliction of duty in not taking steps to inform his authorities of his predicament and, thus, inability to attend his place of posting. As a member of a disciplined force, this conduct was not expected of the petitioner. Even if, the petitioner's version of being at home attending his ailing wife is assumed to be correct, it was a serious dereliction of duty in not taking steps to inform his authorities of his predicament and, thus, inability to attend his place of posting. As a member of a disciplined force, this conduct was not expected of the petitioner. Having regard to the evidence adduced by the witnesses of the disciplinary authority, I am of the view that the Charge No. 1 stands proved against him. The report of the Incharge, Panigaon Out post evidencing his absence at home during the relevant time also cannot be over looked. 12. True it is, that the petitioner stands acquitted of the criminal charge as on date and that at the relevant time of deciding the penalty the disciplinary authority had noted his prima facie involvement therein. In the estimate of this Court, his exoneration on the ground of benefit of doubt ought not to be accorded a decisive bearing on the punishment to be awarded. The petitioner by his conduct has displayed a conspicuous indifference to his duty and a trait of gross irresponsibility unbecoming of a member of a disciplined force. The absence from duty for about 77 days in the facts and circumstances cannot be condoned. Any lenient or compassionate approach on this count is likely to undermine the moral of the force and would be a retrograde step vis-a-vis the discipline and probity thereof to be maintained at all cost. In that view of the matter, this Court is of the considered opinion that the acquittal of the petitioner notwithstanding from the criminal charge on the ground of benefit of doubt, the materials on record are adequate enough even otherwise to maintain the penalty of discharge. 13. The petition in the facts and circumstances lacks in merit and is dismissed. No costs. Petition dismissed.