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2012 DIGILAW 682 (GAU)

Zakir Hussain v. State of Assam

2012-06-05

BIPLAB KUMAR SHARMA

body2012
JUDGMENT B.K. Sharma, J. 1. Heard Mr. A. Choudhury, learned counsel for the petitioner as well as Mr. N. Upadhya, learned State counsel. The petitioner is aggrieved by order dated 18.01.2003 (Annexure-4) by which he has been removed from service pursuant to a departmental proceeding. The appeal preferred by the petitioner against the said order of removal has also been dismissed by Annexure-6 order dated 05.11.2003. Thereafter the petitioner filed the instant writ petition. 2. Mr. Choudhury, learned counsel for the petitioner submits that since the petitioner was absent from duty due to unavoidable circumstances (illness), the disciplinary authority ought to have considered the case leniently. He submits that the penalty imposed is grossly disproportionate to the gravity of the offence committed by the petitioner. countering the said argument, Mr. Upadhya, learned State counsel submits that the petitioner being a member of disciplined force, ought not have acted in such a manner of remaining absent from duty on number of occasions. He submits that even after issuance of charge sheet, the petitioner remained unauthorisedly absent for a period of one year which will go to show that the petitioner was not at all interested in the job. 3. The petitioner was appointed in Assam Police as Constable. He was so appointed in the year 1986. As stated by the petitioner himself, he fell ill in October, 1993 and thereafter he was referred to GMC&H, Guwahati for better treatment. He was allowed to remain in sick list in the police reserve, Kokrajhar and thereafter on 20.12.1993 he was admitted to GMC & H in Psychiatry Department for his illness termed as "Nervous Disorder". He was discharged from hospital on 18.01.1994 4. After making the aforesaid statement in paragraph-3 in the writ petition and without stating anything as to whether the petitioner had resumed his duty or not, he has stated in paragraph-4 that in the month of October, 1995 he again fell ill and the departmental doctor referred him to GMC & H for better treatment. According to the petitioner, his treatment continued upto 10.11.1995. It is the case of the petitioner that on being declared medically fit, he was waiting to resume duty. On 20.02.1996, the doctor allowed him to attend duty, but in utter surprise he was placed under suspension and charge sheets dated 12.02.1996 and 16.02.1996 were served on him. 5. According to the petitioner, his treatment continued upto 10.11.1995. It is the case of the petitioner that on being declared medically fit, he was waiting to resume duty. On 20.02.1996, the doctor allowed him to attend duty, but in utter surprise he was placed under suspension and charge sheets dated 12.02.1996 and 16.02.1996 were served on him. 5. According to the petitioner, he submitted written statement of defence and thereafter an enquiry was conducted. The enquiry officer held the petitioner guilty of unauthorised absence from duty as was levelled against him. The charge sheet that was issued to the petitioner, although not enclosed to the writ petition, but the charge could be gathered from the enquiry report itself and the same is reproduced below: On 19.10.1995 you were reported sick and under gone medical treatment at R.N.B. Civil Hospital Kokrajhar, referred you to GMCH for better treatment on 29.10.1995. Accordingly you were allowed to attend GMCH vide D.O. No. 6070 dated 10.11.1995. But you did not obtain any command certificate to move for GMCH, Guwahati. Till date you have neither intimated your present where about, nor you have intimated any progress of your illness, you have not communicated anything till date with this H.Q. for regularised of the sick period. Your act is seems your wilful unauthorised absence from Police Reserve." 6. In due course the enquiry was conducted in respect of the aforementioned charge and the enquiry officer held the petitioner guilty of the charge with the following finding: Finding:- During my enquiry, I have gone through the all records available with D/P file and also proceeded for taking necessary evidence of the witnesses as per list of the p.ws (1) SI (UB) Subash Ch. Nath R.O. kjr police Reserve, Now R.I. 7th A.P.B.N. (2) ABSI Urendra Rajgongshi, police Reserve (3) Hav. Joytish Barman (4) BAC/637 Sukumar Koch, Police Reserve. I have also recorded the statement of the delinquent ABC/593 Zakir Hussain separately observing all formalities. The evidence so recorded in minutely observed from the evidence given and recorded of the p.ws. and also minutely observed service record and relevant documents which were attached with D/P file. Joytish Barman (4) BAC/637 Sukumar Koch, Police Reserve. I have also recorded the statement of the delinquent ABC/593 Zakir Hussain separately observing all formalities. The evidence so recorded in minutely observed from the evidence given and recorded of the p.ws. and also minutely observed service record and relevant documents which were attached with D/P file. It is found that the charged of gross misconduct and dereliction of duty levelled against the ABC/593 Zakir Hussain is established in prima face manner, because the delinquent was allowed to attend G.M.C. Hospital for better treatment as referred by RNB Civil Hospital as vide D.O. No. 6070 dtd 10-11-95, but neither the delinquent obtain any command certificate from concerned officer nor intimate any progress of his to his competent authority till recovered from ill. Secondly the delinquent allowed to G.M.C. Hospital vide D.O. No. 6070 dtd 10-11-95 and same day the delinquent admitted at G.M.C. Hospital as indoor patient and he submitted discharged certificate which are attached with D/P file SL page No. from 9 to 12 page and it has been seen that the delinquent admitted on 10-11-95 and discharge 12-12-95 at out patient department and prescribed three (3) Nos of Medicines. On 29-2-96 the delinquent collected the medical fitness certificate from register of psychiatry, Guwahati medical college Hospital, Guwahati, so the document clearly indicated that the delinquent had been getting sufficient time to intimate his progress of illness to competent authority because he had admitted at G.M.C. Hospital on same day of D.O. No.6070 dtd. 10.11.1995. The delinquent was discharge on 12-12-95 and checked up 17-2-96 within this period the delinquent was not available at medical college as per discharged and checked up slip. So above documentary evidence he had got enough time to intimate to competent authority about his progress of ill. It is clearly indicated the delinquent intentionally was not intimate accordingly. Thirdly, the service record to the delinquent is also minutely observed and it has been notice that the;delinquent is habitually unauthorise absence constable, so all total 9 (nine ) Nos of increment were stopped and several LWP were awarded for the same. Recently granted 135 days LWP vide D.C.No 1747 dtd. 26-4-2001. of course he nos avail 540 days mental special leave w.e.f. 6-9-97 to 28-2-99 vide D.O. No. 1531 dtd. 8-4-99. Recently granted 135 days LWP vide D.C.No 1747 dtd. 26-4-2001. of course he nos avail 540 days mental special leave w.e.f. 6-9-97 to 28-2-99 vide D.O. No. 1531 dtd. 8-4-99. Under the circumstances, stated above I submit my finding without considering my favour the charge of a gross misconduct and dereliction of duty levelled against ABC/593 Zakir Hussain is proved beyond all reasonable doubts. 7. Accepting the enquiry report, the disciplinary authority passed the impugned order dated 18.01.2003 imposing the penalty of removal from service. While imposing the said penalty the disciplinary authority recorded the finding that the petitioner was absent from duty without any intimation and/or prior approval of the competent authority. The disciplinary authority also considered the fact that the petitioner remained untraced w.e.f. 20.02.2002 till the date of passing the impugned order. 8. Being aggrieved by the said order of removal from service, the petitioner preferred an appeal urging that the absence from duty was not intentional and that he had to remain away because of his illness. As regards the period of absence for one year from 2002-2003, the petitioner took the same stand of being ill. 9. The appellate authority considering all the aspects of the matter passed the Annexure-6 order dated 05.11.2003 upholding the order of removal from service. 10. Mr. Choudhury, learned counsel for the petitioner submits that at the time of passing the impugned order of removal on 28.01.2003, the disciplinary authority could not have taken into account the period of absence of the petitioner w.e.f. 20.02.2002 till the date of passing the order inasmuch as there was no charge levelled against the petitioner in respect of the said period. 11. In the case of Rajasthan Tourism Development Corporation Ltd. and anr. vs. Jai Raj Singh Chauhan reported in (2011) 13 SCC 541, under similar circumstances the Apex Court while upholding the order of penalty held that while considering the misconduct and absence from duty/unauthorised absence, the disciplinary authority is entitled to take subsequent misconduct of further wilful absence after issuance of charge sheet for first period of absence. Dealing with the scope of judicial review in respect of penalty or punishment imposed by the disciplinary authority, the Apex Court observed that as in the said case, unauthorised absence from duty for 66 days may also entail dismissal from service. Dealing with the scope of judicial review in respect of penalty or punishment imposed by the disciplinary authority, the Apex Court observed that as in the said case, unauthorised absence from duty for 66 days may also entail dismissal from service. Interfering with substitution of the penalty of dismissal from service with that of stoppage of two increments, the Apex Court held that the learned Single Judge as well as the Division Bench of the High Court was wrong in substituting the punishment. 12. As has been held by the Division Bench of this Court in Union of India vs. Mithilesh Singh reported in 2000 (3) GLT 62 and affirmed by the Apex Court in Mithiles Singh Vs. Union of India reported in (2003) 3 SCC 309 , unauthorised absence from duty by a member of disciplined force may entail penalty of removal from service. 13. It will be appropriate to mention here that the service record of the petitioner as disclosed in the enquiry proceeding bears clear testimony to the fact that the petitioner while in service was in the habit of remaining absent from duty on various occasions. As many as on 19 occasions the petitioner remained absent from duty unauthorisedly for which he was reprimanded and the period of absence was regularised with leave without pay. He was also imposed with the penalty of stoppage of increments for unauthorised absence. If such was the conduct of the petitioner, no fault can be attributed to the disciplinary authority in imposing the penalty of removal from service. Such incorrigible Police Constable cannot be retained in service. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed. Petition dismissed.