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2013 DIGILAW 540 (GAU)

Gautam Biswas v. State of Assam

2013-08-07

T.VAIPHEI

body2013
JUDGMENT T. Vaiphei, J. 1. Both Mr. P K Deka, learned counsel appearing for the Petitioner and Mr. M Bhagawati, learned State counsel, are heard at length. This writ petition is directed against the order dated 7.9.2007 passed by the Commandant, 21st AP (IR) Battalion, Hailakandi (respondent No. 7), removing the petitioner from service due to negligence of duty which was so gross that it rendered him totally unfit to be retained in a disciplinary force. The petitioner was appointed as AB Constable in 21st AP (IR) Battalion, Hailakandi by the respondent No. 7 on 23.1.2006, whereafter he was sent for basic training at the Armed Police Training Centre (APTC) at Dergaon for a period of 9 months. According to him, during his period of training, his health condition got deteriorated due to acute pain in his stomach and was found absent from duty from time to time. On 17.3.2006, the petitioner along with his brother went to the APTC, Dergaon to report about his serious illness: the training authority suggested him to get cured, which he did. On 27.8.2006, he joined his duty despite his continuing physical weakness and had requested the authority not to send him for training before his complete recovery. However, he was again sent to the APTC, Dergaon on 28.8.2006, but he again felt sick on 29-8-2006. As a result, he tried to meet the respondent No. 7 personally for proper treatment but he was not allowed to do so. This prompted him to leave his training centre and remained under the medical treatment at the Civil Hospital, Karimganj till 21.11.2007. The respondent No. 7 thereafter by the impugned order dated 07.09.2007, removed him from service. Admittedly, no Departmental enquiry was held against the petitioner. He preferred an appeal before respondent No. 5 on 5.12.2007 challenging his removal order, but his appeal came a cropper. This is how this writ petition has been filed by the petitioner. 2. The writ petition is contested by the State-respondents through the respondent No. 7, who has been filed the affidavit-in-opposition. According to the respondent No. 7, the petitioner was found absent since 10.3.2006 and, therefore, requested O/C, Karimganj PS to direct the petitioner to report at APTC immediately otherwise he would be discharged from the training. Again, on 17.4.2006, the answering respondent informed the Co. According to the respondent No. 7, the petitioner was found absent since 10.3.2006 and, therefore, requested O/C, Karimganj PS to direct the petitioner to report at APTC immediately otherwise he would be discharged from the training. Again, on 17.4.2006, the answering respondent informed the Co. 21st AP (IR) Bn with intimation to Police, Guwahati ADGP (TAP)/O/c, Karimganj PS that that the petitioner had been discharged from the training centre for his long 34 days of unauthorized absence from duty i.e. for his unauthorized absence from duties w.e.f. 10.3.2006. The answering respondent further states, on 29.7.2007, the petitioner reported for duty at RTS Dergaon for undergoing basic training on the same day, he was found absent without leave from the RTS and he was, therefore, discharged from the training w.e.f. 03.09.2007. After receipt of the report dated 03.09.2007, notice was issued to the petitioner vide Sig. No. No. Bn/21/IR/R/)&/9273-74 dated 22.08.2007 through concerned Police Station to report for training at Dergaon or face Departmental enquiry, but the petitioner did not report for training even after that also. It was under the aforesaid circumstances that he was finally removed from service by the impugned order. 3. The contention of the learned counsel for the petitioner is that as the petitioner was on probation at the time of his removal from service, he should have been given a reasonable opportunity of hearing guaranteed under Article 311(2) of the Constitution of India. According to the learned counsel for the petitioner, due to denial of such opportunity, he was unable to justify his absence before respondent authorities and that had due opportunity of hearing been given to him, he would have been able to persuade the respondent authorities to take a different view, and they could have been dissuaded from passing the impugned order of removal. The learned counsel for the petitioner, therefore, contends that by denying an opportunity to present his case, serious prejudice has been caused to the petitioner. He, therefore, strongly urges this Court to quash the impugned order and direct the respondent authorities to re-instate him to his former post with full back wages. 4. Mr. M Bhagawati, learned State counsel submits that on the undisputed fact on record that the petitioner was a habitual absentee, holding a Departmental enquiry would be an empty formality. He, therefore, strongly urges this Court to quash the impugned order and direct the respondent authorities to re-instate him to his former post with full back wages. 4. Mr. M Bhagawati, learned State counsel submits that on the undisputed fact on record that the petitioner was a habitual absentee, holding a Departmental enquiry would be an empty formality. According to the learned State counsel, the petitioner is not entitled to protection of Article 311(2) of the Constitution of India inasmuch as he is only a trainee and the omission on the part of the State-respondents to hold an inquiry does not vitiate the impugned order of removal as he has no right to the post. The learned counsel for the State strenuously urges this Court to dismiss the writ petition. 5. To appreciate rival contentions of the learned counsel appearing for both the parties, it will be instructive at the outset to refer to the impugned order at Annexure-4, which is in the following terms: OFFICE OF THE COMMANDANT 21ST A.P. (IR) BN. HAILAKANDI. ORDER R/C No. 451 Gautom Biswas of this unit who has been discharged from the Training Centre Dergaon, twice due to prolong unauthorized absence is removed from service with immediate effect i.e. 6.9.2007 as his negligence to duty is so gross that it renders him totally unfit to the retained in a disciplinary force. Sd/- Commandant 21st A.P. (IR) Battalion Hailakandi. 6. There can be no dispute that the petitioner was appointed as AB Constable after following due process of recruitment. As is evident from his appointment order which at Annexure 1, his appointment was a regular appointment even though it was temporary in nature. However, even a temporary employee cannot be removed from service at the sweet will of his employer as he is protected by Article 311(2) of the Constitution of India, which says that no such person shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The question to be considered now is whether the removal of the petitioner from service is punitive or removal simpliciter? The question to be considered now is whether the removal of the petitioner from service is punitive or removal simpliciter? It is true that an order of removal of a temporary employee or a probationer or even a tenure employee, simpliciter, without casting any stigma may not be interfered with by a Court. However, where a temporary employee is sought to be removed on the ground of misconduct or inefficiency or some similar reason or the order removing him from services casts a stigma or causes substantial loss of reputation which may affect his future prospects, it would require a charge, a full-fledged inquiry and hearing under Article 311(2) of the Constitution. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. 7. On reading the impugned removal order extracted above, it is seen that the petitioner was removed from service due to negligence of duty which was "so gross that it renders him totally unfit to be retained in a disciplinary force." In my opinion, such imputation is certainly stigmatic and will undoubtedly have the effect of causing substantial loss of reputation which may affect his future prospect. Reading the impugned order, therefore, easily gives the impression to a reader that the petitioner is not a hopeless character and is not fit to be appointed for any post. In my opinion, this is stigmatic in nature. Under these circumstances, it can not be held that the impugned removal order is not punitive in nature: such removal could not have been issued without first holding a full-fledged enquiry into the allegations made against him. I am of the view that had a Departmental enquiry been held by giving the petitioner an opportunity of hearing, the disciplinary authority might not have taken the view that the petitioner is unfit to be retained in the force. He should not have been denied of reasonable opportunity to refute the charges made against him and to exonerate him from the charge. This is the protection contemplated and guaranteed by Article 311(2) of the Constitution. In that view of the matter, the respondent authorities have violated the constitutional right of the petitioner. He should not have been denied of reasonable opportunity to refute the charges made against him and to exonerate him from the charge. This is the protection contemplated and guaranteed by Article 311(2) of the Constitution. In that view of the matter, the respondent authorities have violated the constitutional right of the petitioner. The impugned removal order is, therefore, not sustainable in law, and is liable to be quashed. For what has been stated in the foregoing, this writ petition succeeds. The impugned order dated 7.9.2007 issued by the respondent No. 7 at Annexure-4 is accordingly quashed. The respondent authorities are, therefore, directed to re-instate the petitioner to service forthwith. It shall, however, be open to the respondents to conduct a departmental enquiry against the petitioner over the allegation of misconduct made against him in accordance with law. Payment of his back wages will be considered by the respondent authority at their discretion.