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2015 DIGILAW 690 (GAU)

STATE OF ASSAM v. SUSHIL KUMAR @ CHANDRA SARMA

2015-06-04

B.K.SHARMA

body2015
JUDGMENT : B.K. SHARMA, J. 1. This writ petition filed by the State of Assam is against the judgment and order dated 15/02/2003 of the Assam Administrative Tribunal in case No. 27(ATA)/2001, by which while upholding the departmental proceeding that was initiated against the respondent, the Tribunal converted the penalty of dismissal from service to that of compulsory retirement. 2. Facts involved are in a very narrow campus. The respondent, who was the appellant before the Tribunal was dismissed from service with effect from 15/05/2000 pursuant to a departmental proceeding. The departmental appeal preferred by him against the said order of penalty was also dismissed on 15/02/2001. The departmental proceeding pertained to his unauthorized absence from duties. Be it stated here that the respondent was a Constable in the 9th AP Bn. Barhampur, Nagaon. He went on Casual Leave for 7 (seven) days from 02/11/1994 to 10/11/1994 assigning the ground of illness. Thereafter, he prayed for extension for another 7 (seven) days upto 18/11/1994. Before expiry of the said period, he again applied for further leave on 17/11/1994 for one month w.e.f. 18/11/1994. Eventually, he remained absent and claimed that he got fully recovered from his illness towards the end of 1995 and visited the Bn. Headquarter for rejoining his duties but was prevented from doing so. 3. The respondent received a notice dated 09/07/1998 on 29/07/1998 issued by the Commandant requiring him to resume duties within 3 (three) days. According to the respondent, on receipt of the said notice he had gone to rejoin duties, but was not allowed to do so. Thereafter, he was again served with a notice on 04/09/1998 directing him to rejoin duties within three days. The notice indicated that he had over-stayed leave w.e.f. 10/11/1994. According to the respondent he again went to the office, but was not allowed to join duties on the ground that a show cause notice dated 11/09/1998 had already been sent to his home address. 4. The respondent received the show cause notice by which charge of indiscipline, remissness and dereliction of duty was alleged indicating the fact of his remaining absent from duty for indefinite period and also his non-responsive approach to the aforesaid notices requiring him rejoin duty. By the said charge sheet, the respondent was directed to furnish his explanation within 10 (ten) days after inspection of documents. By the said charge sheet, the respondent was directed to furnish his explanation within 10 (ten) days after inspection of documents. According to the respondent, although he tried to submit his written statement on 07/10/1998 but the authority declined to accept the same. At last, he could submit the reply on 09/08/1999 denying the charges. According to the respondent, he was neither informed about the appointment of the Enquiry Officer nor about the date of enquiry and the same was conducted ex parte. 5. After the ex parte enquiry, the respondent having been dismissed from service vide order dated 15/05/2000, he preferred a departmental appeal which was also dismissed vide order dated 15/02/2001. Thereafter, he approached the Assam Administrative Tribunal by filing an appeal, which was registered and numbered as case No. 27(ATA)/2001. The Tribunal upon hearing the parties and on perusal of the records while giving a categorical find that the enquiry was conducted in a fair manner and that the respondent being a man in uniform ought to have complied with the orders of the superior and that his unauthorized absence amounted to serious offence by man in uniform under the provisions of Assam Police Manual, however, without assigning any reason, ordered for converting the penalty of dismissal to that of Compulsory retirement. 6. The petitioners have contended that the aforesaid order converting the penalty of dismissal to that of compulsory retirement is illegal and against the principles of service jurisprudence. It has also been contended that even for compulsory retirement, the respondent having had no qualifying service, the conversion of dismissal to that of compulsory retirement is inconsequential and opposed to the provisions of the Fundamental Rules. 7. Mr. B.J. Ghosh, learned State Counsel representing the petitioners submit that once the Tribunal had recorded the finding that the enquiry was conducted following the due procedure and that the respondent had committed a serious offence, more particularly, when he was a member of disciplined force, could not have interfered with the penalty imposed by the Disciplinary Authority and upheld by the appellate authority and that too without recording any reasons therefor. On the other hand Mr. R. Sarma, learned counsel representing the respondent submits that the writ petition having been filed after 4 (four) years of the impugned judgment of the Tribunal without any explanation, on that ground alone, the writ petition is liable to be dismissed. On the other hand Mr. R. Sarma, learned counsel representing the respondent submits that the writ petition having been filed after 4 (four) years of the impugned judgment of the Tribunal without any explanation, on that ground alone, the writ petition is liable to be dismissed. He also submits that when there was failure on the part of the petitioner to comply with the directions of the Tribunal, a contempt petition was filed and the same was disposed of on 10/05/2007 directing the petitioners to comply with the impugned judgment. According to him, in absence of challenge to the said order, the writ petition is not maintainable. As regards the penalty of compulsory retirement, he submits that the Tribunal ordered for the said penalty having regard to the facts and circumstances involved in the case including the of long length of service of the respondent. 8. Mr. B.J. Ghosh, learned State Counsel representing the petitioners submits that the writ petition having been admitted for hearing without any reservation, it cannot be defeated on the ground of delay. He further submits that on receipt of the impugned judgment, an application was filed before the Tribunal seeking review of the impugned judgment but the same was kept pending without any order passed on it. On the other hand, the petitioner approached the Tribunal by filing a Contempt Petition which was disposed of on 10/05/2007. Thus, according to him, the writ petition having been filed immediately thereafter and thus the question of delay in filing the present writ petition does not arise. 9. I have given my anxious consideration to submissions made by the learned counsel for the parties and perused the materials on record. So far as the delay in filing the writ petition is concerned, it is on record that after the impugned judgment, the petitioners had examined the service records of the respondent and it was found that he did not qualify for getting the benefit of compulsory retirement as he had completed only 9 years 8 days of qualifying service. In this connection, the petitioners have referred to the provisions of FR-56 and SR-97 requiring to have 25 years of service or 50 years of age for the purpose of deriving the benefits of compulsory retirement. In this connection, the petitioners have referred to the provisions of FR-56 and SR-97 requiring to have 25 years of service or 50 years of age for the purpose of deriving the benefits of compulsory retirement. It has been stated in the writ petition that the aforesaid facts were placed on record before the Tribunal by filing an application on 27/04/2006. However, the Tribunal did not modify its order and thereafter on the basis of the Contempt Petition filed by the respondent, direction was issued to comply with the impugned judgment and order. Such a direction was issued on 10/05/2007. It was thereafter, the writ petition was filed. Thus, in my considered opinion, it cannot be said to be a case of filing the writ petition belatedly. 10. This now leads us to the plea of the petitioners that the Tribunal could not have ordered for altering the punishment to that of compulsory retirement from that of dismissal from service. As noted above, the tribunal did not find any procedural irregularity in conducting the departmental enquiry. It has also been held that the respondent did not make any effort to submit explanation to the charge sheet. There is categorical finding in the impugned judgment that the respondent should have immediately carried out the orders of the superior authority and presented himself before the Commandant for further necessary action. There is categorical finding that the conduct on the part of the respondent was malafide. For a ready reference, the findings recorded by the Tribunal are quoted below :- "6. That the appellant Sri Sarma applied for Medical leave for a month on 18.11.94 to the authorities i.e. after expiry of the extended casual leave could not be substantiated. Mere furnishing a copy of the said application stated to have been submitted to the authority without being acknowledged can't be taken as proof of receipt of the same. It also could not be proved by the learned advocate for the appellant that the said leave application, if at all submitted, was granted by the authority. 7. We accept the submission by the learned Sr. Govt. Advocate for the respondent No.4, that the notice issued by the authorities i.e. dated 9.7.98 and 4.9.98 asking the appellant to resume his duties within 10 days from receipt of the communication to have been received by the appellant. 7. We accept the submission by the learned Sr. Govt. Advocate for the respondent No.4, that the notice issued by the authorities i.e. dated 9.7.98 and 4.9.98 asking the appellant to resume his duties within 10 days from receipt of the communication to have been received by the appellant. However, that the appellant was prevented from rejoining to his post on the pretext of issuance of a show cause notice could not be substantiated by him. No witness/es were cited or written evidence/s given in this respect could be produced by the learned counsel of the appellant. 8. Nothing is there on the record or in evidence to show that the appellant's efforts for submission of explanations to the 1st show cause notice dated 11.9.98 issued to him by the respondent No. 4 was prevented by anybody and therefore we have every reason to doubt the veracity of the said statements. Appellants plea to this effect about his ignorance of submission to the replies of show cause notice is not acceptable. 9. We accept the contention of the learned counsel for the appellant that notice in respect of holding of departmental hearing issued to the appellant sent by W.T. was in an incomplete form so far mentioning of date, time and venue & name of Enquiry Officer of the D/P is concerned. However, we hold that being a man in uniform, the appellant should have immediately carried out the orders & present himself in front of his Commandant for further elucidation/necessary action. The action of the appellant in not doing so and raising the queries like above, gives rise to his malafide intention of course of future action. The lack of any documents/communications of the appellant with his battalion during the long years (i.e. 17/94 to 9/98) regarding his whereabouts/illness also gives rise to doubt of any of his honourable intention at a later stage. 10. We therefore overrule such technical objections of the learned counsel for the appellant on the notice served to his client. 11. We also upheld the enquiry report conducted ex parte by the Enquiry Officer in the absence of the appellant in view of above. 12. 10. We therefore overrule such technical objections of the learned counsel for the appellant on the notice served to his client. 11. We also upheld the enquiry report conducted ex parte by the Enquiry Officer in the absence of the appellant in view of above. 12. On the question of tendering evidences by some other persons than those notified in the show cause notice/statement of allegations, we have gone through records and found that one Sri Roshan Ali, UB Baik and N.K. Babul Boro were additionally examined apart from originally listed witness Sri S.N. Sarma, SM, was not produced as witness. Since the witness pertains to only delivering & receipt of notices dated 9.7.98, 4.9.98 urging the appellant to rejoin his duties, a contention he never denied, and to which all above named three witnesses corroborated, we therefore overrule such objections of the learned counsel for the petitioner. 13. In view of what is discussed above, we have now come to a conclusion that it was a fact that Sri Sushil Kr. Sarma, Constable, 9th Assam Police Battalion, remained unauthorisedly absent since 18.11.94 (i.e. from the date of expiry of his extended C/L) and during the period of his absence failed to intimate his battalion regarding causes of his prolonged absence/illness, if any, which amounted to a serious offence by a man in uniform under Act 66(2) of Assam Police Manual and thus uphold the Enquiry Report and order passed against his appeal petition by his authorised superior." 11. Even after the aforesaid finding recorded upholding the enquiry proceeding and holding that the conduct on the part of the respondent was a serious offence, more particularly, when he was a member of the disciplined force, the Tribunal with the following direction ordered for converting the penalty of dismissal to that of compulsory retirement. "However, we direct that considering his long services since 1978 in the police Department and finding an alternative means of livelihood of himself & for maintenance of the members of his family, compulsory retirement from service in lieu of dismissal from service as ordered earlier, well meet the end of justice." 12. In plethora of decisions, the Apex Court has held that it is not for the Tribunal/Court to interfere with the penalty imposed by the Disciplinary authority pursuant to a departmental proceeding. In plethora of decisions, the Apex Court has held that it is not for the Tribunal/Court to interfere with the penalty imposed by the Disciplinary authority pursuant to a departmental proceeding. Such a course of action can be adopted only when the penalty imposed is found to be grossly disproportionate and shocking to the judicial conscience. Even in such case, the matter is required to be remanded back to the Disciplinary Authority for consideration as to whether any other penalty other than the one imposed, is required to be awarded. 13. In the instant case, the charge against the respondent stood proved in the departmental enquiry and the Tribunal gave a categorical finding that there was no infirmity in conducting the enquiry. As noted above, it has also been held that the respondents being a member of the disciplined force committed a serious misconduct as per the provisions of Assam Police Manual. In such circumstances, the Tribunal ought not to have order of its own to substitute the penalty of dismissal from service to that of compulsory retirement, that too without regarding any reasons therefore. As indicated in the instant writ petition, the service record of the petitioner for the earlier period of service reflects the following :- "1. 146 days L.W.P. for his unauthorized absent vide B.O. No. 413 dated 2.4.83. 2. 102 days L.W.P. for his unauthorized absent vide B.O. no. 921 dated 25.5.83. 3. 40 days L.W.P. for his unauthorized absent vide B.O. no. 1350 dated 16.5.84. 4. 28 days Quarter guard with 4 hrs. P.D. daily for his act of indiscipline conduct vide B.O. No. 1350 dated 16.5.88. 5. 88 days L.W.P. for his O.S.L. vide B.O. no. 860 dated 28.3.85. 6. 5 days L.W.P. for his absent vide B.O. no. 152 dated 5.6.85. 7. 82 days L.W.P. for his unauthorized absent vide B.O. no. 476 dated 27.3.91. 8. 7 days P.D. 2 hrs daily for unauthorized absent vide B.O. no. 476 dated 27.3.91." 14. In view of the above, the writ petition is allowed by setting aside and quashing the judgment dated 15/02/2003 of the Assam Administrative Tribunal in case No. 27(ATA)/2001. It will be entirely upto the petitioners to consider as to whether the penalty of dismissal from service requires any interference by awarding any lesser penalty to the respondent. In view of the above, the writ petition is allowed by setting aside and quashing the judgment dated 15/02/2003 of the Assam Administrative Tribunal in case No. 27(ATA)/2001. It will be entirely upto the petitioners to consider as to whether the penalty of dismissal from service requires any interference by awarding any lesser penalty to the respondent. The respondent may approach the appropriate authority in this regard on justifiable ground seeking alteration of the penalty, if so advised. 15. There shall be no order as to costs. 16. The Registry shall send down the LCR to the learned Tribunal below along with a copy of this judgment and order.