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2012 DIGILAW 539 (GAU)

Durgeswar Ray v. State of Assam

2012-05-02

UJJAL BHUYAN

body2012
JUDGMENT Ujjal Bhuyan, J. 1. Heard Mrs. N. Saikia, learned counsel for the petitioner. None appears for the respondents. This is a matter pending since the year 2003. Though the case was admitted as far back as on 11-09-2003, the State respondents have not filed their affidavit. There is none either to argue the case on behalf of the respondents nor to produce the record though the same was directed to be produced by the Court. Under such circumstances, the averments made in the writ petition remain uncontroverted and those are taken to be the correct statement of facts. 2. The petitioner was a constable under the 7th Assam Police Battalion. He was placed under suspension by order dated 17-07-2001 issued by the Commandant, 7th Assam Police Battalion on the allegation that he was absent from duty on that day and was found to be under the influence of liquor. On 23-07-2001, a show cause notice was issued to him by the Commandant 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 allegation against the petitioner as appearing in the show cause notice is that on 17-07-2001 at about 6.30 am he was found to be absent and appeared at about 9.15 am in an intoxicated state after consuming liquor. The petitioner was therefore charged with gross misconduct, negligence of duty and violation of lawful order. Along with the show cause notice, a statement of allegation and a list of witnesses and documents were also furnished to the petitioner. 3. It appears that the petitioner did not file the written statement. A notice dated 08-08-2001 was issued by the 2nd-in-Command of the 7th A.P. Bn., who it appears, was appointed as the Enquiry Officer. By the said notice, the petitioner was informed that hearing in respect of the departmental proceeding drawn up against him, being DP No. 24 of 2001, would be held on 18-08-2001 at 10 am in the office chamber of the Enquiry Officer. He appeared before the Enquiry officer on the day fixed but he was not provided with any Defence Assistant. This was followed by order dated 06-09-2001 issued by the Commandant, 7th Assam Police Battalion, which indicates that in the Inquiry Report submitted by the Enquiry Officer charges against the petitioner were stated to have been proved. He appeared before the Enquiry officer on the day fixed but he was not provided with any Defence Assistant. This was followed by order dated 06-09-2001 issued by the Commandant, 7th Assam Police Battalion, which indicates that in the Inquiry Report submitted by the Enquiry Officer charges against the petitioner were stated to have been proved. Observing that the behaviour of the petitioner is irresponsible and dangerous, the petitioner was removed from service with immediate effect, clarifying that he would not get any financial benefit for the period of suspension except the subsistence allowance. 4. Mrs. Saikia, learned counsel for the petitioner submits that the petitioner is an illiterate person having read only up to XI standard. Because of such deficiency, he could not submit his reply. Learned counsel submits that the petitioner was not provided with any Defence Assistant. She further submits that though the petitioner was present before the Enquiry Officer on the date fixed i.e. 18-08-2001, no copy of the Inquiry Report was thereafter furnished to him. Denying the allegation of intoxication, learned counsel submits that the petitioner had earlier suffered from a bout of depression and had he been given a proper opportunity, he would have satisfied the authority about his innocence. Learned counsel submits that there was no misconduct or disobedience by the petitioner. She finally submits that the removal of the petitioner from service is in complete violation of the principles of natural justice and fair procedure and in the circumstances of the case, is grossly disproportionate. In support of her submissions, learned counsel for the petitioner also relies on the following decisions of the Hon'ble Supreme Court: (1) Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi and Others; (2004) 4 SCC 560 ; (2) Jagdish Singh v. Punjab Engineering College and Others; (2009) 7 SCC 301 ; and (3) State of Uttar Pradesh and Others v. Ram Daras Yadav; (2010) 2 SCC 236 . 5. The submissions made by the learned counsel for the petitioner has been duly considered. 6. No doubt the petitioner was a member of a disciplined force and as a member of a disciplined force, he was expected to maintain the highest standards of discipline. But at the same time, it cannot also be said that just because he was a member of a disciplined force, he was divested of his right to a fair procedure. No doubt the petitioner was a member of a disciplined force and as a member of a disciplined force, he was expected to maintain the highest standards of discipline. But at the same time, it cannot also be said that just because he was a member of a disciplined force, he was divested of his right to a fair procedure. It is seen that the inquiry was conducted without affording the petitioner a reasonable opportunity to defend himself. The Inquiry Report was not furnished to the petitioner and that was acted upon by the disciplinary authority while passing the impugned order removing the petitioner from service. 7. There was thus gross procedural impropriety in the disciplinary proceeding and the same has vitiated the impugned order of penalty. Moreover, removal from service is not a punishment prescribed under Section 7 of the Police Act, 1861. Punishments prescribed are either dismissal, suspension or reduction in rank on the one hand or, fine, confinement, deprivation of good conduct pay and removal from any office of distinction or special emolument on the other hand. It only goes to show the non-application of mind on the part of the disciplinary authority while imposing the penalty on the petitioner. 8. Considering the above, I am of the view that the respondents were not justified in removing the petitioner from service in the manner in which it has been done. Though the petitioner was entitled to a fair procedure, in the opinion of this Court, the same was denied to him. Further, the punishment of removal from service is one which was not permissible to be imposed as per the Police Act. Consequently, the impugned order of removal dated 06-09-2001 is interfered with and the same is hereby set aside. 9. Both Shri Bhagwan Lal Arya and State of Uttar Pradesh and others (supra) are decisions relating to punishments imposed on police personnel. Despite being conscious of the fact that the cases dealt with members of a disciplined force, the Hon'ble Supreme Court in the facts of those two cases intervened and modified the penalty imposed. 10. Coming to the present case, one of the major punishments provided under Section 7 of the Police Act, 1861 is suspension. Despite being conscious of the fact that the cases dealt with members of a disciplined force, the Hon'ble Supreme Court in the facts of those two cases intervened and modified the penalty imposed. 10. Coming to the present case, one of the major punishments provided under Section 7 of the Police Act, 1861 is suspension. Therefore, considering the facts and circumstances of the case and the long period of time which has elapsed in the meanwhile, the punishment shall be modified by treating the period of suspension from 17-07-2001 to 06-09-2001 as the punishment imposed on the petitioner. The petitioner shall be reinstated in service, subject to furnishing of fitness certificate, maintaining continuity of service all through out. 11. Writ petition stands allowed to the extent indicated above. No cost. Petition allowed.