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2015 DIGILAW 1376 (GAU)

Phula Gogoi Chutia v. State of Assam

2015-11-03

UJJAL BHUYAN

body2015
JUDGMENT : Ujjal Bhuyan, J. Heard Mr. B.K. Das, learned counsel for the petitioner and Mr. A. Matlib, learned Government Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 19.05.2009, issued by the disciplinary authority imposing the penalty of removal from service on the petitioner. 3. This matter was heard at length on 17.09.2015, following which, the following order was passed:- "By order dated 19.05.2009 issued by the Special Superintendent of Police, CID, petitioner was removed from service on the ground of unauthorized absence. A perusal of the impugned order would go to show that an enquiry was conducted against the petitioner on the charge of overstay of leave w.e.f. 28.04.2006. As per report of enquiry, the charge was proved. Notices issued to the petitioner were not responded. Holding that petitioner committed gross misconduct and acted in an in-disciplined manner, disciplinary authority took the view that she was not fit to remain in a disciplined force like the CID, Assam Police. Accordingly, impugned penalty was imposed. From the counter affidavit filed on behalf of respondent No. 5 (disciplinary authority) it transpires that a show-cause notice dated 07.05.2007 was issued to the petitioner under Section 7 of the Police Act read with Rule 66 of the Assam Police Manual Part-III and Article 311 of the Constitution as to why any of the penalties prescribed therein should not be inflicted on her for the charges framed against her. The charges related to unauthorized absence of the petitioner w.e.f. 28.04.2006. Enquiry was held where petitioner did not participate. Charges were proved in the enquiry where after penalty was imposed. However, copy of the enquiry report has not been annexed to the counter affidavit. According to the petitioner, she was suffering from depressive psychosis, a mental ailment, and was under treatment in the Gauhati Medical College and Hospital during that period. As per medical certificate dated 09.11.2009 she was declared fit to resume duties. Other medical certificates have been placed on record to show that petitioner was under medical treatment in the Gauhati Medical College and Hospital for various periods. Petitioner had applied for leave of 83 days which was processed in the office. Mr. Das, learned counsel for the petitioner has urged the following grounds challenging the impugned order:- 1. Show-cause notice dated 07.05.2007 was not served on the petitioner. Petitioner had applied for leave of 83 days which was processed in the office. Mr. Das, learned counsel for the petitioner has urged the following grounds challenging the impugned order:- 1. Show-cause notice dated 07.05.2007 was not served on the petitioner. The notice was addressed to the office address of the petitioner and not to her home address. When it was a case of unauthorized absence, notice ought to have been sent to the home address. 2. Petitioner had no knowledge about drawal of departmental proceeding. 3. Enquiry proceeded ex-parte against the petitioner. Here also, she was not served with any notice of enquiry. 4. As petitioner was suffering from mental illness, the notice ought to have been sent not only to her home address but also served on her immediate family member. 5. Since petitioner had given adequate explanation for her absence from duty mainly on account of mental illness supported by medical certificates, it was not a case of misconduct on account of unauthorized absence. 6. Since petitioner suffered from mental illness in the course of her service it would come within the definition of "disability" within the meaning of Section 2(I)(viii) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Equal Participation) Act, 1995. In such circumstances, petitioner would be protected under Section 47 of the said Act. Therefore, for all the aforesaid reasons, impugned penalty cannot be sustained and is liable to be interfered with." 4. At the fag end of hearing, Mr. B. Chetri, learned Senior Government Advocate appeared and prayed for a short time to produce the record of the disciplinary proceeding drawn up against the petitioner. On his request, further hearing of the case was deferred to 01.10.2015. 5. On 01.10.2015, Mr. Chetri was not present. Case was directed to be listed again on 13.10.2015. On 13.10.2015 also, Mr. Chetri was not present. Today, when the matter is called upon, again he is not present though his name is reflected in the Cause List. 6. Senior Government Advocate is an important office representing the Government in the proceedings before the High Court. Office of the Senior Government Advocate is a responsible office in the dispensation of justice by the High Court. He has to discharge his duties in a responsible manner and assist the Court in the assigned cases. 6. Senior Government Advocate is an important office representing the Government in the proceedings before the High Court. Office of the Senior Government Advocate is a responsible office in the dispensation of justice by the High Court. He has to discharge his duties in a responsible manner and assist the Court in the assigned cases. However, conduct of the Senior Government Advocate as can be seen from the above cannot be appreciated and is most reprehensible. Beyond this, Court would not like to comment further in this regard. 7. Since the substance of the case projected by the petitioner has already been summarised in the order dated 17.09.2015, reiteration of the same is considered not necessary. 8. It appears that an affidavit has been filed by respondent No. 5, i.e., Special Superintendent of Police, CID, Assam, which was noticed in the order dated 17.09.2015. It is admitted that petitioner was appointed as Woman Constable (AP) in the DEF, Guwahati, on 16.11.1987. In the course of her service, she joined CID, Assam, on 05.03.2000. The affidavit discloses a list of leaves availed by the petitioner on various grounds. It is further stated that petitioner went on 7 (seven) days' casual leave on 20.04.2006, but did not report back for duty on 28.04.2006. However, petitioner submitted application on 18.07.2006, stating about her illness and prayed for further leave. Not satisfied with the conduct of the petitioner, departmental proceeding was drawn up against her for unauthorized absence from duty. Based on findings of the enquiry officer, disciplinary authority came to the conclusion that the charge levelled against the delinquent stood proved. Since the delinquent was found to be on unauthorized absence for a long period, penalty of removal from service was imposed on her. 9. Petitioner has submitted rejoinder affidavit controverting the stand taken by respondent No. 5 and reiterating her contentions advanced in the writ petition. 10. Reverting back to the grounds of challenge, as recorded in the order dated 17.09.2015, it appears from the documents placed on record that petitioner was suffering from mental illness which required special treatment in the Gauhati Medical College and Hospital (GMCH). When the petitioner was suffering from mental illness, question of service of notice in connection with the departmental proceeding assumes great importance. Show cause notice containing charges framed against a delinquent is the foundation of the departmental proceeding. When the petitioner was suffering from mental illness, question of service of notice in connection with the departmental proceeding assumes great importance. Show cause notice containing charges framed against a delinquent is the foundation of the departmental proceeding. Therefore, service of such show cause notice assumes critical importance. When a person is suffering from mental illness or is mentally impaired, can service of notice in her home address be treated as sufficient service? This question was specifically gone into by this Court in the case of State Bank of India v. Ashok Kumar Das; reported in 2007 (2) GLT 959. In the said decision, it was held that a notice means giving intimation or putting the person to warning either asking him to do an act or restraining him from doing the act. A person who suffers from mental illness cannot be said to have been put to notice for such a person would not know as to what he was doing and/ or what was being done to him. This Court held that in such a case a notice may validly be served on a person who may have been appointed as a guardian of the mentally sick person. In the instant case, there is nothing on record to show that the show cause notice issued to the petitioner was served on any appointed guardian of the petitioner. In that view of the matter, it can reasonably be held that notice of the departmental proceeding was not validly served upon the petitioner. Consequently, the enquiry proceeded ex parte against the petitioner. Even, during the enquiry, from the documents on record, it is not discernible that any notice of the enquiry was issued to or served upon an appointed guardian of the petitioner. As already recorded in the order dated 17.09.2015, the show cause notice was issued to the office address of the petitioner and not even to the home address. Therefore, the decision in Ashok Kumar Das (supra) would be fully attracted in the facts of the present case. Thus, no proper and valid notice was served upon the petitioner. 11. The basic charge against the petitioner was that of unauthorized absence w.e.f. 28.04.2006. From the documents placed on record, it appears that petitioner was suffering from depressive psychosis, a mental ailment and was under treatment in the Gauhati Medical College and Hospital (GMCH) during that period. Thus, no proper and valid notice was served upon the petitioner. 11. The basic charge against the petitioner was that of unauthorized absence w.e.f. 28.04.2006. From the documents placed on record, it appears that petitioner was suffering from depressive psychosis, a mental ailment and was under treatment in the Gauhati Medical College and Hospital (GMCH) during that period. As per medical certificate dated 09.11.2009, she was declared fit to resume duties only therefrom. As a matter of fact, petitioner had applied for 83 (eighty-three) days of leave, which was in fact, processed in the office of the disciplinary authority. In Krushnakant B. Parmar v. Union of India, reported in (2012) 3 SCC 178 , the Hon'ble Supreme Court has held that the question as to whether unauthorized absence from duty amounts to failure of devotion to duty or behaviour unbecoming of a Government servant, cannot be decided without deciding the question whether the absence is wilful or because of compelling circumstances. If the absence is the result of a compelling circumstance, under which, it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorized absence but it does not always mean wilful. The Apex Court explained that there may be different eventualities due to which, an employee may abstain from duty including compelling circumstances beyond his control like illness, accident, hospitalization etc., but in such case, employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. Finally, it was held that in a departmental proceeding if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful and in the absence of such finding, the absence will not amount to misconduct. 12. Coming back to the facts of the present case, a careful perusal of the impugned order of the disciplinary authority does not disclose application of mind to this aspect of the matter. 13. There is one more aspect of the matter. It is the pleaded case of the petitioner that copy of the enquiry report was not furnished to him. On the other hand, a perusal of the impugned order would show that it was passed on the basis of findings by the Enquiry Officer. 13. There is one more aspect of the matter. It is the pleaded case of the petitioner that copy of the enquiry report was not furnished to him. On the other hand, a perusal of the impugned order would show that it was passed on the basis of findings by the Enquiry Officer. Affidavit filed by respondent No. 5 also does not contain any copy of the enquiry report. Record of the disciplinary proceeding has also not been produced before the Court. In such circumstances, the enquiry report could not be perused by the Court. 14. Therefore, from the above, Court is of the unhesitant view that absence of the petitioner from duty was on account of medical grounds, which was explained by her. Thus, it was not a case of wilful unauthorized absence and consequently, it cannot be termed as misconduct. 15. To compound the above, as per finding already recorded, notice of the departmental proceeding was not served on the petitioner. The above 2 (two) omissions are fatal to the departmental proceeding itself and therefore, it may not be necessary to delve into the other grounds raised by the petitioner as recorded in the order dated 17.09.2015. 16. In view of the above, impugned order dated 19.05.2009 cannot be sustained and is accordingly set aside and quashed. Petitioner shall be reinstated in service subject to her medical fitness to be assessed by a duly constituted medical board of the State Government. On her reinstatement, petitioner should be paid 50% of her back wages. This should be carried out within a period of 60 (sixty) days from the date of receipt of a certified copy of this order. 17. While judgment was being dictated, Mr. B. Chetri, learned Senior Government Advocate has appeared. On a query by the Court, he submits that he does not have the record of the disciplinary proceeding with him. 18. Writ petition is accordingly allowed, but without any order as to costs.